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Full text of "Mississippi Code, Court Rules, 2012 Edition"

ISSISSIPPI 
RULES 
ANNOTATED 



2012EDmON 



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Digitized by the Internet Archive 
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MISSISSIPPI CODE 
1972 

ANNOTATED 



ADOPTED AS THE OFFICIAL CODE OF THE 

STATE OF MISSISSIPPI 

BY THE 

1972 SESSION OF THE LEGISLATURE 



COURT RULES 

2012 Edition 
Prepared by the Editorial Staff of the Publisher 




LexisNexis 



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PREFACE 

Use of 2012 Edition; format. 

The 2012 Edition of the Mississippi Court Rules Annotated is a pubHcation 
of LexisNexis. It has been edited, annotated and indexed by the staff of the 
pubhshers. It is pubhshed in soft cover and is replaced annually. All changes 
and additions to the Rules, the official Comments and Notes, and the Forms 
are reflected in each year's edition and the annotations are reviewed and 
updated, providing the user with the most current and useful information. 

This edition includes the rules of the State and local courts, as well as the 
rules of federal courts in and for the State of Mississippi. The Table of Contents 
in this edition contains a complete listing of all of the Rules. In addition, each 
set of Rules contains its own table of contents and index. 

The Court Rules are intended to accompany the Mississippi Code of 1972 
Annotated. The format and style of the Code has been adhered to as closely as 
possible for purposes of consistency and for the convenience of the users of the 
Rules. 

Scope of rules and annotations. 

This edition includes all changes and additions to the Rules, the official 
Comments and Notes, and the Forms that have taken place since their initial 
issuance up to and including August 2, 2012. In addition, notes construing the 
Rules have been taken from the reports of decisions of the local and federal 
courts in cases arising in Mississippi since the issuance of the Rules. 

To better serve our customers by making our annotations more current, 
LexisNexis has changed the sources that are read to create annotations for this 
publication. Rather than waiting for cases to appear in printed reporters, we 
now read court decisions as they are released by the courts. A consequence of 
this more current reading of cases, as they are posted online on LexisNexis, is 
that the most recent cases annotated may not yet have print reporter citations. 
These will be provided as they become available through later publications. 

This publication contains annotations taken from decisions of the Missis- 
sippi Supreme Court and Court of Appeals and decisions of the appropriate 
federal courts. These cases will be printed in the following reporters: 

Southern Reporter, 3rd Series 

United States Supreme Court Reports 

Supreme Court Reporter 

United States Supreme Court Reports, Lawyers' Edition, 2nd Series 

Federal Reporter, 3rd Series 

Federal Supplement, 2nd Series 

Federal Rules Decisions 

Bankruptcy Reporter 

Additionally, annotations have been taken from the following sources: 

American Law Reports, 6th Series 

iii 



PREFACE 

American Law Reports, Federal Series 
Mississippi College Law Review 
Mississippi Law Journal 

Finally, published opinions of the Attorney General and opinions of the 
Ethics Commission have been examined for annotations. 

Among the annotations are Editor's notes inserted by the publisher's 
editorial staff to explain references, call attention to obvious errors, inconsis- 
tencies or ambiguities in the Rules, the official Comments, Notes, and Forms, 
and to alert users to suggested new rules and introduce major changes. Also, 
when necessary brackets have been inserted around material in the text to 
correct misspellings, punctuation or language errors and incorrect references 
to the Rules, sections of the Code, titles of positions, or names of institutions. 

Amendments, additions, changes, and revisions of rules. 

Amendments, additions, changes, and revisions received since the March 
2012 Supplement of the Mississippi Court Rules are to the following: 

Appellate Rules of Procedure 

Rule 6, 22, 28, 29, 31, 32, and 46 

Information, suggestions, comments, and questions. 

Visit the LexisNexis website at http://www.lexisnexis.com for an online 
bookstore, technical support, customer service, and other company informa- 
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For further information or assistance, please call us toll free at (800) 
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customer.support@bender.com, or write to: Mississippi Editor, LexisNexis, 701 
E. Water Street, Charlottesville, VA 22902-5389. 

October 2012 LexisNexis 



IV 



USER'S GUIDE 

This guide is designed to help both lawyer and layperson get the most out 
of the Mississippi Court Rules Annotated. Information about key features of 
the Court Rules and suggestions for their more effective use are given under 
the following headings: 

— General Information 

— Analyses 

— Attorney General Opinions 

— Cross References 

— Editor's Notes 

— Index 

— Judicial Decisions 

— Research and Practice References 

If you have a question not addressed by the User's Guide, or comments 
about the Court Rules, you may contact us by calling us toll free at (800) 
833-9844, faxing us toll free at (800) 643-1280, e-mailing us at 
customer.support@bender.com, or writing to Mississippi Editor, LexisNexis, 
701 E. Water Street, Charlottesville, VA 22902-5389. 

GENERAL INFORMATION 

The Mississippi Court Rules are published by LexisNexis in a fully- 
annotated softcover volume, which is replaced annually and supplemented 
semi-annually 

The Court Rules volume contains statewide rules of procedure of the state 
courts, the local rules of the United States district courts and bankruptcy 
courts for Mississippi, and the rules of the United States Court of Appeals for 
the Fifth Circuit. Rules are received from the courts and are edited only for 
stylistic consistency. 

ANALYSES 

Each set of rules is preceded by an analysis. The analysis details the scope 
of the set and enables the user to see at a glance the content of the unit without 
resorting to a page-by-page examination of the Rules volume or supplement. 

ATTORNEY GENERAL OPINIONS 

Opinions of the attorney general for the state of Mississippi have been read 
for constructions of Mississippi law. Notes describing the subject matter of the 
opinions have been placed under relevant rules under the heading "Attorney 
General Opinions." The citation at the end of each note includes the name of 
the person requesting the opinion, the date of the opinion, and the opinion 
number. 



USER'S GUIDE 

CROSS REFERENCES 

Cross references refer the user to other statutes or rules that may affect a 
rule or give it context. Cross references do not cite all related rules, as these 
can be identified by using the indexes following each set of rules. 

EDITOR'S NOTES 

Editor's notes are notes prepared by the Publisher that contain information 
about important or unusual features of a rule not apparent from the rule's text, 
or special circumstances surrounding enactment or amendment of the rule. 

INDEX 

Each set of rules is immediately followed by an index. As accurate and 
thorough as the indexes are, there is no such thing as an index that is 
affordable, convenient, and perfect. Your best defense against index wild goose 
chases is familiarity with indexing techniques. To that end, an explanatory 
foreword to the index appears in the first volume of the Index to the Mississippi 
Code of 1972 Annotated. 

JUDICIAL DECISIONS 

Every reported case from the Supreme Court of Mississippi, the Court of 
Appeals of Mississippi, federal district courts for Mississippi, the federal Fifth 
Circuit Court of Appeals and the United States Supreme Court has been read 
for constructions of Mississippi law. These constructions are noted under 
pertinent rules, under the heading "Judicial Decisions." Where a decision has 
been reviewed by a higher court, subsequent judicial history and disposition is 
noted in the case note if such disposition has any bearing on the annotated 
material. Where two or more decisions state the same rule of law, the case 
citations may be cumulated under one case note. 

Case notes are grouped together under headings called "catchlines." The 
catchlines identify the basic subject matter of the case notes and assist the user 
in locating pertinent notes. 

RESEARCH AND PRACTICE REFERENCES 

Citations to references in American Jurisprudence, American Jurisprudence 
Pleading and Practice, American Jurisprudence Proof of Facts, American 
Jurisprudence Trials, American Law Reports, First through Sixth Series, ALR 
Federal, Corpus Juris Secundum, various treatises and practice guides, and 
Mississippi law journals are given under this heading, wherever the references 
appear to discuss the rule under which the citation appears, or a topic related 
to the rule. 



VI 



USER'S GUIDE 

These citations are intended only as a starting point for library research. The 
Mississippi law journals include Mississippi Law Journal and Mississippi 
College Law Review. 



Vll 



I 



Contents 

Page 
Rules of Civil Procedure 1 

Index 423 

Rules of Evidence 439 

Index ;. 807 

Rules of Appellate Procedure 815 

Index ^. 969 

Uniform Rules of Circuit and County Court Practice 979 

Index 1163 

Uniform Chancery Court Rules 1173 

Index 1241 

Uniform Rules of Procedure for Justice Court 1247 

Index 1261 

Uniform Rules of Youth Court Practice 1265 

Index 1347 

Rules of Professional Conduct 1357 

Index 1481 

Rules of Discipline for the Mississippi State Bar 1489 

Index 1535 

Rules Governing Admission to the Mississippi Bar 1537 

Index 1575 

Rules and Regulations for Mandatory Continuing Legal Education 1579 

Index 1591 

Code of Judicial Conduct 1593 

Index 1661 

Rules of the Mississippi Commission on Judicial Performance 1665 

Index 1679 

Rules and Regulations for Mandatory Continuing Judicial Education ... 1681 

Index 1689 

Rules and Regulations Governing Certified Court Reporters 1691 

Index 1717 

Court Annexed Mediation Rules for Civil Litigation 1719 

Index 1729 

Rules and Regulations for Certification and Continuing Education for 
Mississippi Court Administrators 1731 

Index 1735 

Rules for Electronic and Photographic Coverage of Judicial Proceedings 1737 

Index 1743 

Federal Rules of Appellate Procedure with Fifth Circuit Rules and 
Internal Operating Procedures 1745 

Index 1851 

Rules for Judicial-Conduct and Judicial-Disability Proceedings 1877 

Index 1903 

Uniform Local Rules of the United States District Courts for the North- 
ern and Southern Districts of Mississippi 1913 

ix 



Table of Contents 

Index 1997 

Uniform Local Rules of the United States Bankruptcy Courts for the 

Northern and Southern Districts of Mississippi 2011 

Index 2087 



QUICK ACCESS GUIDE 

To use the Quick Access Guide bend the book so that the black margin markers are 
visible and follow the pointer to the page with the corresponding margin marker. 

Rules of Civil Procedure (p. 1) ► 

Rules of Evidence '. (p. 439) ^ 

Rules of Appellate Procedure (p. 815) ► 

Uniform Rules of Circuit and County Court Practice (p. 979) ^ 

Uniform Chancery Court Rules (p. 1173) ► 

Uniform Rules of Procedure for Justice Court (p. 1247) ► 

Uniform Rules of Youth Court Practice (p. 1265) ► 

Rules of Professional Conduct (p. 1357) ^ 

Rules of Discipline for the Mississippi State Bar (p. 1489) ► 

Rules Governing Admission to the Mississippi State Bar (p. 1537) ^ 

Rules and Regulations for Mandatory Continuing Legal 

Education (p. 1579) ^ 

Code of Judicial Conduct (p. 1593) ► 

Rules of the Mississippi Commission on Judicial Performance (p. 1665) ► 



XI 



QUICK ACCESS GUIDE (continued) 

To use the Quick Access Guide bend the book so that the black margin markers are 
visible and follow the pointer to the page with the corresponding margin marker. 

Rules and Regulations for Mandatory Continuing Judicial 

Education (p. 1681) ^ 

Rules and Regulations Governing Certified Court Reporters ... (p. 1691) ► 

Court Annexed Mediation Rules for Civil Litigation (p. 1719) ► 

Rules and Regulations for Certification and Continuing Educa- 
tion for Mississippi Court Administrators (p. 1731) ^ 

Rules for Electronic and Photographic Coverage of Judicial 

Proceedings (p. 1737) ^ 

Federal Rules of Appellate Procedure and Fifth Circuit Rules 

and Internal Operating Procedures (p. 1745) ^ 

Fifth Circuit Rules Governing Complaints of Judicial Miscon- 
duct or Disability (p. 1877) ^ 

Uniform Local Rules of the United States District Courts for the 

Northern and Southern Districts of Mississippi (p. 1913) ^ 

Uniform Local Rules of the United States Bankruptcy Courts for 

the Northern and Southern Districts of Mississippi (p. 2011) ^ 



Xlll 



MISSISSIPPI RULES OF CIVIL PROCEDURE 

Adopted Effective January 1, 1982 

ORDER ADOPTING THE MISSISSIPPI RULES OF CIVIL PROCEDURE. 
CHAPTER I. SCOPE OF RULES— ONE FORM OF ACTION 

Rule 

1. Scope of rules. 

2. One form of action. 

CHAPTER II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS, PLEADINGS, 

MOTIONS, AND ORDERS 

3. Commencement of action. 

4. Summons. 

5. Service and filing of pleadings and other papers. 

6. Time. 

CHAPTER HI. PLEADINGS AND MOTIONS 

7. Pleadings allowed; form of motions. 

8. General rules of pleading. 

9. Pleading special matters. 

10. Form of pleadings. 

11. Signing of pleadings and motions. 

12. Defenses and objections — when and how presented — by pleading or motion — 

motion for judgment on the pleadings. 

13. Counter-claim and cross-claim. 

14. Third-party practice. 

15. Amended and supplemental pleadings. 

16. Pre-trial procedure. 

16A. Motions for recusal of judges. 

CHAPTER IV. PARTIES 

17. Parties plaintiff and defendant; capacity. 

18. Joinder of claims and remedies. 

19. Joinder of persons needed for just adjudication. 

20. Permissive joinder of parties. 

21. Misjoinder and nonjoinder of parties. 

22. Interpleader. 

23. Class actions. [Omitted]. 

23.1. Derivative actions by shareholders. [Omitted]. 

23.2. Actions relating to unincorporated associations. [Omitted]. 

24. Intervention. 

25. Substitution of parties. 

CHAPTER V. DEPOSITIONS AND DISCOVERY 

26. General provisions governing discovery. 

27. Depositions before action or pending appeal. 

28. Persons before whom depositions may be taken. 

29. Stipulations regarding discovery procedure. 

30. Depositions upon oral examination. 

31. Depositions upon written questions. 

32. Use of depositions in court proceedings. 

33. Interrogatories to parties. 



MISSISSIPPI COURT RULES 

Rule 

34. Production of documents and things and entry upon land for inspection and other 

purposes. 

35. Physical and mental examinations of persons. 

36. Requests for admission. 

37. Failure to make or cooperate in discovery: sanctions. 

CHAPTER VI. TRIALS 

38. Jury trial of right. 

39. Trial by jury or by the court. [Omitted]. 

40. Assignment of cases for trial. 

41. Dismissal of actions. 

42. Consolidation: separate trials. 

43. Taking of testimony. 

44. Proof of documents. 

44.1. Determination of foreign law. [Omitted]. 

45. Subpoena. 

46. Exceptions unnecessary. 

47. Jurors. 

48. Juries and jury verdicts. 

49. General verdicts and special verdicts. 

50. IMotions for a directed verdict and for judgment notwithstanding the verdict. 

51. Instructions to jury. 

52. Findings by the court. 

53. IVIasters, referees, and commissioners. 

CHAPTER VII. JUDGMENT 

54. Judgments; costs. 

55. Default. 

56. Summary judgment. 

57. Declaratory judgments. 

58. Entry of judgment. 

59. New trials; amendment of judgments. 

60. Relief from judgment or order. 

61. Harmless error. 

62. Stay of proceedings to enforce a judgment. 

63. Disability of a judge. 

CHAPTER VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL 

PROCEEDINGS 

64. Seizure of person or property. 

65. Injunctions. 

65.1. Security: proceedings against sureties. 



66. 


Receivers. 






67. 


Deposit in court. 






68. 


Offer of judgment. 






69. 


Execution. 






70. 


Judgment for specific acts; vesting title. 






71. 


Process in behalf of and against persons 


not 


parties 


71 A. Eminent domain. [Reserved]. 







CHAPTER IX. APPEALS 

72 to 76. [Omitted]. 



RULES OF CIVIL PROCEDURE 

Rule 

CHAPTER X. COURTS AND CLERKS 

77. Courts and clerks. 

78. Motion practice. 

79. Books and records kept by the clerk and entries therein. 

80. Stenographic report or transcript as evidence. [Omitted]. 

81. Applicability of rules. 

CHAPTER XI. GENERAL PROVISIONS 

82. Jurisdiction and venue. 

83. Local court rules. 

84. Forms. 

85. Title. 

APPENDIX A. FORMS 

Form 

lA. Summons. 

lAA. Summons. 

IB. Notice and acknowledgement for service by mail. 

IC. Summons by publication. 

ID. Rule 81 Summons. 

IDD. Rule 81 Summons. 

IE. Waiver of process. 

2. Complaint on a promissory note. 

3. Complaint on covenant or agreement. 

4. Complaint for specific performance. 

5. Complaint on an open account. 

6. Complaint on account stated. 

7. Complaint for goods sold and delivered. 

8. Complaint for work and labor done. 

9. Complaint for money lent. 

10. Complaint for money paid by mistake. 

11. Complaint for money had and received. 

12. Complaint for money paid by plaintiff for defendant. 

13. Complaint on a policy of life insurance. 

14. Complaint on a policy of fire insurance. 

15. Complaint for negligence or wantonness. 

16. Complaint for assault and battery. 

17. Complaint for false imprisonment. 

18. Complaint for malicious prosecution. 

19. Complaint for fraud. 

20. Complaint on a warranty. 

21. Complaint for conversion. 

22. Motion to dismiss pursuant to Rule 12 (b). 

23. Answer presenting defenses under Rule 12 (b). 

24. Motion to bring in third-party defendant. 

25. Third-party complaint. 

26. Motion to intervene as a defendant under Rule 24. 

27. Motion to drop defendant or for severance of claims. 

28. Motion by defendant for severance of claims of several plaintiffs. 

29. Motion by plaintiff to add defendant. 

30. Motion by defendant to bring in additional defendant. 

31. Motion by defendant to add additional plaintiff. 

32. Answer to complaint set forth in Form 11 with counter-claim for interpleader. 

33. Plaintiff's motion for substitution — Deceased party defendant. 



MISSISSIPPI COURT RULES 

Form 

34. Pre-trial order. 

35. Motion for judgment notwithstanding the verdict, or in the alternative, for new 

trial. 

36. Application to clerk for entry of default and supporting affidavit. 

37. Docket of entry of default. 

38. Default judgment entered by court. 

APPENDIX B. STATUTES AFFECTED 

APPENDK C. TIME TABLE FOR PROCEEDINGS UNDER THE MISSISSIPPI RULES 

OF CIVIL PROCEDURE 



Cross References — Practice and procedure provisions common to courts, see 
Mississippi Code of 1972 §§ 11-1-1 et seq. 

RESEARCH REFERENCES 

Practice References. USCS Federal Edward I. Niles, Federal Civil Proce- 
Rules of Civil Procedure Set (Matthew dure, Third Edition (Michie). 
Bender). 



ORDER ADOPTING THE MISSISSIPPI RULES OF CIVIL PROCE- 
DURE. 

SUPREME COURT OF MISSISSIPPI 

Pursuant to the inherent authority vested in this Court by the Constitution of 
the State of Mississippi, as discussed in Cecil Newell, Jr. u. State of Mississippi, 
308 So. 2d 71 (Miss. 1975), to promote justice, uniformity, and the efficiency of 
courts, the rules attached hereto are adopted and promulgated as Rules of 
Practice and Procedure in all Chancery, Circuit, and County Courts of this 
State in all civil actions filed on and after January 1, 1982, any and all statutes 
and court rules previously adopted to the contrary notw^ithstanding, and in the 
event of a conflict betw^een these rules and any statute or court rule previously 
adopted these rules shall control. 

The Clerk of this Court is authorized and directed to spread this order and the 
rules attached hereto at large on the minutes of the Court, and the Clerk is 
further authorized and directed to forward a certified copy thereof to West 
Publishing Company for publication in a forthcoming edition of Southern 
Reporter, Mississippi Cases, the official publication of decisions of this Court. 
ORDERED, this the 26th day of May, 1981. 

FOR THE COURT 

Neville Patterson, 
Chief Justice 



RULES OF CIVIL PROCEDURE 



Rule 1 



CHAPTER I. SCOPE OF RULES— ONE FORM OF 

ACTION 

Rule 1. Scope of rules. 

These rules govern procedure in the circuit courts, chancery courts, and 
county courts in all suits of a civil nature, whether cognizable as cases at law 
or in equity, subject to certain limitations enumerated in Rule 81; however, 
even those enumerated proceedings are still subject te these rules where no 
statute applicable to the proceedings provides otherwise or sets forth proce- 
dures inconsistent with these rules. These rules shall be construed to secure 
the just, speedy, and inexpensive determination of every action. 

COMMENT 



The purpose of Rule 1 is to state the 
scope and applicability of the Mississippi 
Rules of Civil Procedure and the basic 
philosophical principle for their judicial 
construction. 

Rule 1 must be considered together with 
Rule 81 to determine the applicability of 
the Mississippi Rules of Civil Procedure to 
civil practice in Mississippi. Generally, all 
civil actions in the circuit, chancery, and 
county courts are subject to the applica- 
tion of the rules; exceptions are listed in 
Rule 81. The excepted civil actions are 
governed by procedures stated in the stat- 
utes pertaining to those actions. 

It is intended that these rules be ap- 
plied as liberally to civil actions as is 
judicially feasible, whether in actions at 
law or in equity. However, nothing in the 
rules should be interpreted as abridging 
or modifying the traditional separations of 
jurisdiction between the law courts and 
equity courts in Mississippi. 

The rules apply irrespective of the na- 
ture of the parties to the action, including 
the state of Mississippi or any political 
subdivision thereof. It is established law 
in Mississippi that where a statute per- 
mits the state or a subdivision thereof to 
be brought into court as a litigant, it is 
subject to the same procedural rules as is 
any other party. Humphreys County v. 
Cashin, 128 Miss. 236, 90 So. 888 (1922), 
Bolivar County v. Bank of Cleveland, 170 
Miss. 555, 561, 155 So. 176, 177 (1934) 
(Ethridge, J., dissenting). 

The salient provision of Rule 1 is the 
statement that "These rules shall be con- 



strued to secure the just, speedy, and 
inexpensive determination of every ac- 
tion." There probably is no provision in 
these rules more important than this 
mandate: It reflects the spirit in which the 
rules were conceived and written and in 
which they should be interpreted. The 
primary purpose of procedural rules 
should be to promote the ends of justice; 
these rules reflect the view that this goal 
can be best accomplished by the establish- 
ment of a single form of action, known as 
a "civil action," thereby uniting the proce- 
dures in law and equity through a simpli- 
fied procedure that minimizes technicali- 
ties and places considerable discretion in 
the trial judge for construing the rules in a 
manner that will secure their objectives. 
Properly utilized, the rules will tend to 
discourage battles over mere form and to 
sweep away needless procedural contro- 
versies that either delay a trial on the 
merits or deny a party his day in court 
because of technical deficiencies. The 
mandate in the final sentence of Rule 1 is 
only one of a number of similar admoni- 
tions scattered throughout the rules di- 
recting that the rules be interpreted liber- 
ally in order that the procedural 
framework in which litigation is con- 
ducted promotes the ends of justice and 
facilitates decisions on the merits, rather 
than determinations on technicalities. 
See, e. g.. Miss. Code Ann. § 11-5-13 
(1972) (statute setting forth requirements 
of bill of complaint). Perhaps the most 
important of these statements is the pro- 
vision of Rule 61 which directs that "the 



Rule 1 



MISSISSIPPI COURT RULES 



court at every stage of the proceeding 
must disregard any error or defect in the 
proceeding which does not affect the sub- 
stantial rights of the parties." 

The keystone to the effective function- 
ing of the Mississippi Rules of Civil Pro- 
cedure is, obviously, the discretion of the 
trial court. The rules grant considerable 
power to the judge and only provide gen- 
eral guidelines as to the manner in which 
it should be exercised. Accordingly, judges 



must view the rules with a firm under- 
standing of the philosophy of the rules and 
must exercise a wise and sound discretion 
to effectuate the objective of the simplified 
procedure. The rules will remain a work- 
able system only so long as trial judges 
exercise their discretion intelligently on a 
case-by-case basis; application of arbi- 
trary rules of law to particular situations 
will have a debilitating effect on the over- 
all system. 



JUDICIAL DECISIONS 



In general. 
Applicability. 

In general. 

Mississippi Rules of Civil Procedure 
were not mere suggestions or recommen- 
dations. Compliance was a requirement 
toward the end of securing the just, 
speedy, and inexpensive determination of 
every action. Ensuring compliance with 
the rules was necessary, as a rule which is 
not enforced is no rule. Therefore, the suit 
of a widow who took no action of record for 
seven years was required to be dismissed 
under Miss. R. Civ P. 41(d). 111. Cent. R.R. 
Co. V Moore, 994 So. 2d 723 (Miss. 2008). 

Because the Mississippi Employment 
Security Commission (MESC) was not a 
circuit, chancery or county court, the Mis- 
sissippi Rules of Civil Procedure, particu- 
larly Miss. R. Civ. P. 6(e), were not appli- 
cable to its administrative hearings or 
appeals. Miss. Empl. Sec. Comm'n v. Par- 
ker, 903 So. 2d 42 (Miss. 2005). 

In an action relating to waste disposal, 
a transfer to a chancery court was im- 
proper because equitable claims were not 
added until after the transfer, and the 
action had been pending in the circuit 
court for five years before the transfer was 
requested. Georgia-Pacific Corp. v. 
Mooney, 909 So. 2d 1081 (Miss. 2005). 

Parties agreed that under the trial 
court's method of computation, service 
was complete on third party defendant 
one on day 130, and on third party defen- 
dant two on day 131. However, the appel- 
late court found that although there was 
no good cause shown for the delay in 
service, the delay was relatively slight, 
and there was good cause for allowing the 



litigation to proceed; on the specific facts 
of the case, that was enough, and the trial 
court properly denied the third party de- 
fendants' motions to dismiss. Tunek v. 
Windham, 897 So. 2d 186 (Miss. Ct. App. 
2004), cert, denied, 896 So. 2d 373 (Miss. 
2005). 

The Mississippi Rules of Civil Proce- 
dure do not apply to administrative pro- 
ceedings. Mississippi Real Estate Ap- 
praiser Licensing & Certification Bd. v. 
James, 730 So. 2d 1135 (Miss. 1999). 

Applicability. 

As the rules of civil procedure applied in 
all courts, and the rules controlled in the 
event of a confiict between a rule of proce- 
dure and a statute, the appellate court did 
not err in holding that a special master 
appointed under Miss. R. Civ. P. 53 was 
not subject to the oath in Miss. Code Ann. 
§ 11-21-17. Dunaway v. Morgan, 918 So. 
2d 872 (Miss. Ct. App. 2006). 

When complaint seeking equitable re- 
lief was filed by the heirs of the original 
plaintiff more than 60 years after a chan- 
cellor's decree determined that the origi- 
nal plaintiff and his partner each owned a 
one-half interest in the land, and the heirs 
alleged that the original decree was a 
mistake or accident under Miss. R. Civ. P. 
60(b)(2), the heirs' complaint was time- 
barred. R. N. Turnbow Oil Invs. v. Mcin- 
tosh, 873 So. 2d 960 (Miss. 2004). 

Rules of civil procedure did not apply to 
proceedings before the State Oil & Gas 
Board. State Oil & Gas Bd. v. McGowan, 
542 So. 2d 244 (Miss. 1989). 

Proceedings in an election contest be- 
fore a political party's executive commit- 
tee are not civil proceedings in a court of 



RULES OF CIVIL PROCEDURE 



Rule 2 



record, and hence Rules of Civil Procedure Civil Procedure control only to extent that 
have no application; with respect to pro- governing statute is silent. Shannon v. 
ceedings before special tribunal, Rules of Henson, 499 So. 2d 758 (Miss. 1986). 

Rule 2. One form of action. 

There shall be one form of action to be knov^n as "civil action." 

COMMENT 



The purpose of Rule 2 is to eliminate the 
term "cause of action" from the lexicon of 
Mississippi civil practice. By substituting 
for "cause of action" the phrases "claim" or 
"claim for relief," these rules will give the 
courts of Mississippi the freedom and au- 
thority to deal pragmatically with any 
aggregate of operative facts which give 
rise to a right enforceable in the courts, 
consistent with the jurisdiction of the 
courts. 

The prescription in Rule 2 that there 
shall be one form of action may be the 
most fundamental rule of all. A number of 
important consequences follow from Rule 
2: Forms of action are abolished; most 
distinctions between chancery procedure 
and law procedure are eliminated; the 
significance of the term "cause of action," 
which formerly was a matter of serious 
dispute, has been eliminated. These rules 
will provide a procedural framework for 



all litigation in the trial courts of Missis- 
sippi. Except in certain limited instances 
enumerated in Rule 81, the civil action 
prescribed by these rules is the proper 
medium for exercising any civil power the 
chancery, circuit, or county courts in Mis- 
sissippi may possess. 

Rule 2 does not affect the various rem- 
edies that previously have been available 
in the courts of Mississippi. The abolition 
of the forms of action furnishes a single, 
uniform procedure by which a litigant 
may present his claim in an orderly man- 
ner to a court empowered to give him 
whatever relief is appropriate and just; 
the substantive and remedial principles 
that applied prior to the advent of these 
rules are not changed. What was an action 
at law before these rules is still an action 
founded on legal principles and what was 
a bill in equity before these rules is still a 
civil action founded on principles of equity. 



JUDICIAL DECISIONS 



1. In general. 

Chancery court did not err in denjdng a 
motion filed by the mother of a decedent's 
child to set aside or amend an order dis- 
bursing funds, including attorneys' fees, 
from the settlement of a wrongful death 
action because the chancery court lacked 
jurisdiction to hear the motion; because 
the matter was not brought by complain 
but merely by a motion contested among 
the attorneys of the minor parties in the 
underlying action, tit would have been 
inappropriate procedurally for the chan- 
cellor to transfer the issue of attorneys' 
fees to the circuit court. In re Estate of 



Wilhams, 40 So. 3d 1282 (Miss. Ct. App. 
2010). 

In determining if a suit was barred by 
res judicata, identity of the cause of action 
was examined in light of Miss. R. Civ. P. 2, 
which required the court to look past the 
legal bases asserted and rely more on the 
factual and transactional relationship be- 
tween the original action and the subse- 
quent action. Parties and courts were to 
distinguish between what body of fact 
constituted a claim and what legal theo- 
ries attached to that body of fact. Hill v. 
Carroll County, 17 So. 3d 1081 (Miss. 
2009). 



Rule 3 MISSISSIPPI COURT RULES 

CHAPTER II. COMMENCEMENT OF ACTION: SERVICE 
OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS 

Rule 3. Commencement of action. 

(a) Filing of complaint. A civil action is commenced by filing a complaint 
with the court. A costs deposit shall be made with the filing of the complaint, 
such deposit to be in the amount required by the applicable Uniform Rule 
governing the court in which the complaint is filed. 

The amount of the required costs deposit shall become effective immediately 
upon promulgation of the applicable Uniform Court Rule and its approval by 
the Mississippi Supreme Court. 

(b) Motion for security for costs. The plaintiff may be required on motion of 
the clerk or any party to the action to give security within sixty days after an 
order of the court for all costs accrued or to accrue in the action. The person 
making such motion shall state by affidavit that the plaintiff is a nonresident 
of the state and has not, as affiant believes, sufficient property in this state out 
of which costs can be made if adjudged against him; or if the plaintiff be a 
resident of the state, that he has good reason to believe and does believe, that 
such plaintiff cannot be made to pay the costs of the action if adjudged against 
him. When the affidavit is made by a defendant it shall state that affiant has, 
as he believes, a meritorious defense and that the affidavit is not made for 
delay; when the affidavit is made by one not a party defendant it shall state 
that it is not made at the instance of a party defendant. If the security be not 
given, the suit shall be dismissed and execution issued for the costs that have 
accrued; however, the court may, for good cause shown, extend the time for 
giving such security. 

(c) Proceeding in forma pauperis. If a pauper's affidavit is filed in the action 
the costs deposit and security for costs may be waived. The court may, however, 
on the motion of any party, on the motion of the clerk of the court, or on its own 
initiative, examine the affiant as to the facts and circumstances of his 
pauperism. 

(d) Accounting for costs. Within sixty days of the conclusion of an action, 
whether by dismissal or by final judgment, the clerk shall prepare an itemized 
statement of costs incurred in the action and shall submit the statement to the 
parties or, if represented, to their attorneys. If a refund of costs deposit is due, 
the clerk shall include payment with the statement; if additional costs are due, 
a bill for same shall accompany the statement. (Amended effective September 
1, 1987; amended effective June 24, 1992.) 

ADVISORY COMMITTEE HISTORICAL NOTE 

Effective June 24, 1992, Rule 3(a) was sippi Supreme Court. 598-602 So. 2d XXI 

amended to provide that before they are (West Miss. Cas. 1992). 

effective, the amounts of required costs Effective September 1, 1987, Rule 3(e) 

deposits must be promulgated by Uniform was amended by providing that the 

Court Rule and approved by the Missis- amount required as a deposit for filing 

8 



RULES OF CIVIL PROCEDURE 



Rule 3 



suit shall be the amount required by the 
Uniform Rule governing the court in 



which the action is filed. 508-511 So. 2d 

XXV (West Miss. Cas. 1988). 



COMMENT 



The purpose of Rule 3(a) is to establish 
a precise date for fixing the commence- 
ment of a civil action. The first step in a 
civil action is the filing of the complaint 
with the clerk or judge. Accord Bacon v. 
Gardner, 23 Miss. 60 (1851); see Miss. 
Code Ann. § 11-7-33 (1972). Service of 
process upon the defendant is not essen- 
tial to commencement of the action. 

Ascertaining the precise date of com- 
mencement is important in determining 
whether an action has been brought pre- 
maturely, see Euclid-Mississippi v. West- 
ern Cas. & Sur Co., 249 Miss. 547, 163 
So.2d 676 (1964); whether it is barred by a 
statute of limitations, see Maddux v. 
Jones, 51 Miss. 631 (1875); and which of 
two or more courts in which actions in- 
volving the same parties and issues have 
been instituted should retain the case for 
disposition, absent special consideration; 
see Euclid-Mississippi v. Western Cas. & 
Sur Co., supra. See also, Bacon u. Gard- 
ner, supra (statute of limitations not 
tolled when plaintiff filed complaint but 
requested that process not be issued); ac- 
cord, Erving's Hatcheries, Inc. v. Garrott, 
250 Miss. 701, 168 So.2d 52 (1964). 



The provisions in Rule 3 pertaining to 
costs are intended to make uniform the 
assessing, accounting for, and refunding 
of costs. It is intended that there be no 
local variations from the costs deposit 
provision of Rule 3 (a); Rule 3 (b) provides 
ample latitude for requiring additional 
costs, and accords with prior Mississippi 
practice. See Miss. Code Ann. § 11-53-5 
(1972). 

Rule 3 (c) accords with Miss. Code Ann. 
§ 11-53-17 (1972) in allowing indigents to 
sue without depositing security for costs; 
however, the indigent affiant may be ex- 
amined as to his financial condition and 
the court may, if the allegation of indi- 
gence is false, dismiss the action. Accord, 
Miss. Code Ann. § 11-53-19 (1972). 

Rule 3 (d) requires that clerks promptly 
account for costs in all actions. It is in- 
tended that this provision will make uni- 
form the procedure for refunding costs. 
Costs are an expense of individual parties 
— not their attorneys. Accordingly, un- 
used costs deposits are to be promptly 
returned to the parties on a case-by-case 
basis. Accord, Miss. Code Ann. § 11-53-9 
(1972). 



JUDICIAL DECISIONS 



In general. 
Parties. 

In general. 

Chancery court did not err in denying a 
motion filed by the mother of a decedent's 
child to set aside or amend an order dis- 
bursing funds, including attorneys' fees, 
from the settlement of a wrongful death 
action because the chancery court lacked 
jurisdiction to hear the motion; because 
the matter was not brought by complain 
but merely by a motion contested among 
the attorneys of the minor parties in the 
underlying action, tit would have been 
inappropriate procedurally for the chan- 
cellor to transfer the issue of attorneys' 
fees to the circuit court. In re Estate of 
WiUiams, 40 So. 3d 1282 (Miss. Ct. App. 
2010). 



Appellant inmate's attempt to assert a 
claim under 42 U.S.C.S. § 1983 was with- 
out merit because he never filed any such 
complaint or any corresponding sum- 
mons; he only filed various motions and 
documents, and under Miss. R. Civ. P. 
3(a), a party had to file a complaint to 
institute an action. Dobbs v. State, 6 So. 
3d 1088 (Miss. Ct. App. 2008), reversed by, 
remanded by 6 So. 3d 1085, 2009 Miss. 
LEXIS 165 (Miss. 2009). 

Where an attorney appealed the denial 
of unemployment benefits, it was error to 
find that the attorney's appeal was un- 
timely based on the failure to include a 
civil cover sheet, because the attorney 
demonstrated good cause for an extension 
of the filing deadline since the cover sheet 
requirement did not bar the otherwise 



9 



Rule 4 MISSISSIPPI COURT RULES 

timely notice of appeal. Cummings v. Subsection (a) of this rule and Rule 4(h) 

Miss. Dep't of Empl. Sec, 980 So. 2d 340 operate to the extent that the commence- 

(Miss. Ct. App. 2008). ment date of an action is the date of filing, 

Defendants' removal motion was timely and that date obtains for statute of hmi- 

filed because service ofprocess was not an tations purposes whenever the action is 

absolute prerequisite for removal and the not dismissed, including those instances 

notice of removal was filed after the com- in which the action would have been dis- 

plaint. Bell v. Am. Gen. Fin., Inc., 267 F. niissed but for an extension of time. 

Supp. 2d 582 (S.D. Miss. 2003). Crumpton v. Hegwood, 740 So. 2d 292 

Plaintiffs filing of complaint by mail did (Miss. 1999). 

not extend statute of limitation on actions Parties. 

for assault and battery and intentional in a dispute concerning adjoining land- 
infliction of emotional distress by three owners' rights to property along a river, 
days; dismissal of action on grounds of the appellate court hmited review to the 
limitation was not error when the com- chancellor's decision regarding the parties 
plaint was not received by the trial court who were actually named as appellants 
clerk until after the statute of limitation and appellees in the notice of appeal, 
had run. Slaydon v. Hansford, 830 So. 2d Comeaux v. Freeman, 918 So. 2d 780 
686 (Miss. Ct. App. 2002). (Miss. Ct. App. 2005). 

Rule 4. Summons. 

(a) Summons: issuance. Upon filing of the complaint, the clerk shall forth- 
w^ith issue a summons. 

(1) At the v^ritten election of the plaintiff or the plaintiff's attorney, the clerk 
shall: 

(A) Deliver the summons to the plaintiff or plaintiffs attorney for service 
under subparagraphs (c)(1) or (c)(3) or (c)(4) or (c)(5) of this rule. 

(B) Deliver the summons to the sheriff of the county in w^hich the defendant 
resides or is found for service under subparagraph (c)(2) of this rule. 

(C) Make service by publication under subparagraph (c)(4) of this rule. 

(2) The person to whom the summons is delivered shall be responsible for 
prompt service of the summons and a copy of the complaint. Upon request of 
the plaintiff, separate or additional summons shall issue against any defen- 
dants. 

(b) Same: form. The summons shall be dated and signed by the clerk, be 
under the seal of the court, contain the name of the court and the names of the 
parties, be directed to the defendant, state the name and address of the 
plaintiff's attorney, if any, otherwise the plaintiff's address, and the time 
within which these rules require the defendant to appear and defend, and shall 
notify him that in case of his failure to do so judgment by default will be 
rendered against him for the relief demanded in the complaint. Where there 
are multiple plaintiffs or multiple defendants, or both, the summons, except 
where service is made by publication, may contain, in lieu of the names of all 
parties, the name of the first party on each side and the name and address of 
the party to be served. Summons served by process server shall substantially 
conform to Form lA. Summons served by sheriff shall substantially conform to 
Form lAA. 



10 



RULES OF CIVIL PROCEDURE Rule 4 

(c) Service: 

(1) By process server A summons and complaint shall, except as provided in 
subparagraphs (2) and (4) of this subdivision, be served by any person who is 
not a party and is not less than 18 years of age. When a summons and 
complaint are served by process server, an amount not exceeding that 
statutorily allowed to the sheriff for service of process may be taxed as 
recoverable costs in the action. 

(2) By sheriff. A summons and complaint shall, at the written request of a 
party seeking service or such party's attorney, be served by the sheriff of the 
county in which the defendant resides or is found, in any manner prescribed by 
subdivision (d) of this rule. The sheriff shall mark on all summons the date of 
the receipt by him, and within thirty days of the date of such receipt of the 
summons the sheriff shall return the same to the clerk of the court from which 
it was issued. 

(3) By mail. 

(A) A summons and complaint may be served upon a defendant of any class 
referred to in paragraph (1) or (4) of subdivision (d) of this rule by mailing a 
copy of the summons and of the complaint (by first-class mail, postage prepaid) 
to the person to be served, together with two copies of a notice and acknowl- 
edgment conforming substantially to Form 1-B and a return envelope, postage 
prepaid, addressed to the sender. 

(B) If no acknowledgment of service under this subdivision of this rule is 
received by the sender within 20 days after the date of mailing, service of such 
summons and complaint may be made in any other manner permitted by this 
rule. ■ . .: 

(C) Unless good cause is shown for not doing so, the court shall order the 
payment of the costs of personal service by the person served if such person 
does not complete and return within 20 days after mailing the notice and 
acknowledgment of receipt of summons. 

(D) The notice and acknowledgment of receipt of summons and complaint 
shall be executed under oath or affirmation. 

(4) By publication. 

(A) If the defendant in any proceeding in a chancery court, or in any 
proceeding in any other court where process by publication is authorized by 
statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, 
to be a nonresident of this state or not to be found therein on diligent inquiry 
and the post office address of such defendant be stated in the complaint, 
petition, or affidavit, or if it be stated in such sworn complaint or petition that 
the post office address of the defendant is not known to the plaintiff or 
petitioner after diligent inquiry, or if the affidavit be made by another for the 
plaintiff or petitioner, that such post office address is unknown to the affiant 
after diligent inquiry and he believes it is unknown to the plaintiff or petitioner 
after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the 
complaint or petition, account or other commencement of a proceeding, shall 
promptly prepare and publish a summons to the defendant to appear and 
defend the suit. The summons shall be substantially in the form set forth in 
Form 1-C. 

11 



Rule 4 MISSISSIPPI COURT RULES 

(B) The publication of said summons shall be made once in each week 
during three successive weeks in a public newspaper of the county in which the 
complaint or petition, account, cause or other proceeding is pending if there be 
such a newspaper, and where there is no newspaper in the county the notice 
shall be posted at the courthouse door of the county and published as above 
provided in a public newspaper in an adjoining county or at the seat of 
government of the state. Upon completion of publication, proof of the pre- 
scribed publication shall be filed in the papers in the cause. The defendant 
shall have thirty (30) days from the date of first publication in which to appear 
and defend. Where the post office address of a defendant is given, the street 
address, if any, shall also be stated unless the complaint, petition, or affidavit 
above mentioned, avers that after diligent search and inquiry said street 
address cannot be ascertained. 

(C) It shall be the duty of the clerk to hand the summons to the plaintiff or 
petitioner to be published, or, at his request, and at his expense, to hand it to 
the publisher of the proper newspaper for publication. Where the post office 
address of the absent defendant is stated, it shall be the duty of the clerk to 
send by mail (first class mail, postage prepaid) to the address of the defendant, 
at his post office, a copy of the summons and complaint and to note the fact of 
issuing the same and mailing the copy, on the general docket, and this shall be 
the evidence of the summons having been mailed to the defendant. 

(D) When unknown heirs are made parties defendant in any proceeding in 
the chancery court, upon affidavit that the names of such heirs are unknown, 
the plaintiff may have publication of summons for them and such proceedings 
shall be thereupon in all respects as are authorized in the case of a nonresident 
defendant. When the parties in interest are unknown, and affidavit of that fact 
be filed, they may be made parties by publication to them as unknown parties 
in interest. 

(E) Where summons by publication is upon any unmarried infant, mentally 
incompetent person, or other person who by reason of advanced age, physical 
incapacity or mental weakness is incapable of managing his own estate, 
summons shall also be had upon such other person as shall be required to 
receive a copy of the summons under paragraph (2) of subdivision (d) of this 
rule. 

(5) Service by certified mail on person outside state. In addition to service by 
any other method provided by this rule, a summons may be served on a person 
outside this state by sending a copy of the summons and of the complaint to the 
person to be served by certified mail, return receipt requested. Where the 
defendant is a natural person, the envelope containing the summons and 
complaint shall be marked "restricted delivery." Service by this method shall be 
deemed complete as of the date of delivery as evidenced by the return receipt 
or by the returned envelope marked "Refused." 

(d) Summons and complaint: person to be served. The summons and 
complaint shall be served together. Service by sheriff or process server shall be 
made as follows: 

(1) Upon an individual other than an unmarried infant or a mentally 
incompetent person, 

12 



RULES OF CIVIL PROCEDURE Rule 4 

(A) by delivering a copy of the summons and of the complaint to him 
personally or to an agent authorized by appointment or by law to receive 
service of process; or 

(B) if service under subparagraph (1)(A) of this subdivision cannot be made 
with reasonable diligence, by leaving a copy of the summons and complaint at 
the defendant's usual place of abode with the defendant's spouse or some other 
person of the defendant's family above the age of sixteen years who is willing 
to receive service, and by thereafter mailing a copy of the summons and 
complaint (by first class mail, postage prepaid) to the person to be served at the 
place where a copy of the summons and of the complaint were left. Service of 
a summons in this manner is deemed complete on the 10th day after such 
mailing. 

(2)(A) upon an unmarried infant by delivering a copy of the summons and 
complaint to any one of the following: the infant's mother, father, legal 
guardian (of either the person or the estate), or the person having care of such 
infant or with whom he lives, and if the infant be 12 years of age or older, by 
delivering a copy of the summons and complaint to both the infant and the 
appropriate person as designated above. 

(B) upon a mentally incompetent person who is not judicially confined to an 
institution for the mentally ill or mentally deficient or upon any other person 
who by reason of advanced age, physical incapacity or mental weakness is 
incapable of managing his own estate by delivering a copy of the summons and 
complaint to such person and by delivering copies to his guardian (of either the 
person or the estate) or conservator (of either the person or the estate) but if 
such person has no guardian or conservator, then by delivering copies to him 
and copies to a person with whom he lives or to a person who cares for him. 

(C) upon a mentally incompetent person who is judicially confined in an 
institution for the mentally ill or mentally retarded by delivering a copy of the 
summons and complaint to the incompetent person and by delivering copies to 
said incompetent's guardian (of either the person or the estate) if any he has. 
If the superintendent of said institution or similar official or person shall 
certify by certificate endorsed on or attached to the summons that said 
incompetent is mentally incapable of responding to process, service of sum- 
mons and complaint on such incompetent shall not be required. Where said 
confined incompetent has neither guardian nor conservator, the court shall 
appoint a guardian ad litem for said incompetent to whom copies shall be 
delivered. 

(D) where service of a summons is required under (A), (B) and (C) of this 
subparagraph to be made upon a person other than the infant, incompetent, or 
incapable defendant and such person is a plaintiff in the action or has an 
interest therein adverse to that of said defendant, then such person shall be 
deemed not to exist for the purpose of service and the requirement of service in 
(A), (B) and (C) of this subparagraph shall not be met by service upon such 
person. 

(E) if none of the persons required to be served in (A) and (B) above exist 
other than the infant, incompetent or incapable defendant, then the court shall 

13 



Rule 4 MISSISSIPPI COURT RULES 

appoint a guardian ad litem for an infant defendant under the age of 12 years 
and may appoint a guardian ad litem for such other defendant to whom a copy 
of the summons and complaint shall be delivered. Delivery of a copy of the 
summons and complaint to such guardian ad litem shall not dispense with 
delivery of copies to the infant, incompetent or incapable defendant where 
specifically required in (A), and (B) of this subparagraph. 

(3) Upon an individual confined to a penal institution of this state or of a 
subdivision of this state by delivering a copy of the summons and complaint to 
the individual, except that when the individual to be served is an unmarried 
infant or mentally incompetent person the provisions of subparagraph (d)(2) of 
this rule shall be followed. 

(4) Upon a domestic or foreign corporation or upon a partnership or other 
unincorporated association which is subject to suit under a common name, by 
delivering a copy of the summons and of the complaint to an officer, a managing 
or general agent, or to any other agent authorized by appointment or by law to 
receive service of process. 

(5) Upon the State of Mississippi or any one of its departments, officers or 
institutions, by delivering a copy of the summons and complaint to the 
Attorney General of the State of Mississippi. 

(6) Upon a county by delivering a copy of the summons and complaint to the 
president or clerk of the board of supervisors. 

(7) Upon a municipal corporation by delivering a copy of the summons and 
complaint to the mayor or municipal clerk of said municipal corporation. 

(8) Upon any governmental entity not mentioned above, by delivering a copy 
of the summons and complaint to the person, officer, group or body responsible 
for the administration of that entity or by serving the appropriate legal officer, 
if any, representing the entity. Service upon any person who is a member of the 
"group" or "body" responsible for the administration of the entity shall be 
sufficient. 

(e) Waiver. Any party defendant who is not an unmarried minor, or mentally 
incompetent may, without filing any pleading therein, waive the service of 
process or enter his or her appearance, either or both, in any action, with the 
same effect as if he or she had been duly served with process, in the manner 
required by law on the day of the date thereof. Such waiver of service or entry 
of appearance shall be in writing dated and signed by the defendant and duly 
sworn to or acknowledged by him or her, or his or her signature thereto be 
proven by two (2) subscribing witnesses before some officer authorized to 
administer oaths. Any guardian or conservator may likewise waive process on 
himself and/or his ward, and any executor, administrator, or trustee may 
likewise waive process on himself in his fiduciary capacity. However, such 
written waiver of service or entry of appearance must be executed after the day 
on which the action was commenced and be filed among the papers in the cause 
and noted on the general docket. 

(f) Return. The person serving the process shall make proof of service 
thereof to the court promptly. If service is made by a person other than a 
sheriff, such person shall make affidavit thereof. If service is made under 

14 



RULES OF CIVIL PROCEDURE 



Rule 4 



paragraph (c)(3) of this rule, return shall be made by the sender's filing with 
the court the acknowledgment received pursuant to such subdivision. If service 
is made under paragraph (c)(5) of this rule, the return shall be made by the 
sender's filing with the court the return receipt or the returned envelope 
marked "Refused." Failure to make proof of service does not affect the validity 
of the service. 

(g) Amendment. At any time in its discretion and upon such terms as it 
deems just, the court may allow any process or proof -of service thereof to be 
amended, unless it clearly appears that material prejudice would result to the 
substantial rights of the party against whom the process is issued. 

(h) Summons: time limit for service. If a service of the summons and 
complaint is not made upon a defendant within 120 days after the filing of the 
complaint and the party on whose behalf such service was required cannot 
show good cause why such service was not made within that period, the action 
shall be dismissed as to that defendant without prejudice upon the court's own 
initiative with notice to such party or upon motion. (Amended effective May 1, 
1982; March 1, 1985; February 1, 1990; July 1, 1998; January 3, 2002.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective July 1, 1998, Rule 4(f) was 
amended to state that the person serving 
process shall promptly make proof of ser- 
vice thereof to the court. 

Effective February 1, 1990, Rule 
4(c)(4)(B) was amended by striking the 
word "calendar" following the word and 
figure "thirty (30)"; Rule 4(c)(4) was 
amended by adding subsection (E); Rule 
4(c)(5) was amended by changing the title 
to reflect service by certified mail; Rule 



4(d)(2)(A) was amended by substituting 
the word "person" for "individual" in ref- 
erence to the one having care of the infant. 
553-556 So. 2d XXXIII (West Miss. Gas. 
1990). 

Effective March 1, 1985, a new Rule 4 
was adopted. 459-462 So. 2d XVIII (West 
Miss. Gas. 1985). 

Effective May 1, 1982, Rule 4 was 
amended. 410-416 So. 2d XXI (West Miss. 
Gas. 1982). 



COMMENT 



The original version of Rule 4, effective 
as of January 1, 1982, was amended by 
the Mississippi Supreme Court on March 
5, 1982. The amending order deleted the 
entire text of Rule 4 and substituted the 
prior statutory procedure for service of the 
summons. On December 28, 1984, the 
Supreme Court adopted a new Rule 4, 
effective March 1, 1985. Forms applicable 
to the new Rule 4 were adopted on May 2, 
1985. This comment pertains to new Rule 
4 and its forms. 

After an action is commenced, the clerk 
is required to issue a separate summons 
for each defendant except in the case of 
summons by publication. The plaintiff or 
his attorney has the right, by written 
election, to determine whether each sum- 



mons shall be delivered to the plaintiff or 
his attorney for service by process server 
or delivered by the clerk to the sheriff of 
the county in which the defendant resides 
or may be found. Where service is by 
publication, the clerk shall hand the sum- 
mons to the plaintiff or to his attorney, or, 
if so requested by either of them, the clerk 
shall hand it to the publisher of the proper 
newspaper for publication. 

Forms lA, lAA, IB and IG are provided 
as suggested forms for the various sum- 
mons. All summonses used pursuant to 
Rule 4 must be in substantial conformity 
with these forms. 

Various* "Processes" provided for by stat- 
ute, other than the summons and sub- 
poena (the subpoena is governed by Rule 



15 



Rule 4 



MISSISSIPPI COURT RULES 



45), will continue to be governed by stat- 
ute. 

Rule 4(a)(2) requires that a copy of the 
complaint be served with the summons. 
Rule 4(b) requires that the summons form 
notify defendant that his failure to appear 
will result in a judgment by default 
against defendant for the relief demanded 
in the complaint. Although the "judgment 
by default will be rendered" language may 
be an overstatement, the language is in- 
cluded in Rule 4 for two reasons. First, the 
language is part of Federal Rule 4(b), and 
an effort has been made to maintain pro- 
cedural conformity between the Missis- 
sippi and federal systems where possible. 
Second, the strong language is deemed 
more likely to encourage defendants to 
appear to protect their interests. 

Rule 4(b) provides that where there are 
multiple plaintiffs or defendants, the sum- 
mons may name just the first party on 
each side, together with the name and 
address of the party to be served. How- 
ever, the complaint, which must accom- 
pany the summons, will provide the 
names of all parties to the action. 

Exhibits to the complaint form a part of 
the complaint and in most cases should be 
attached to the complaint [See Rule 
10(d)]. However, in cases where unusually 
lengthy exhibits are attached to the com- 
plaint, plaintiff may elect not to attach 
copies of the lengthy exhibits to the copies 
of the complaint served, but instead may 
attach a statement to the effect that such 
exhibits are not attached because of their 
size and that the exhibits are available for 
inspection and copying. 

Rule 4(c)(1) provides for service by a 
process server and Rule 4(c)(2) provides 
for service by a sheriff. There is no limit to 
the territorial jurisdiction of a process 
server who may serve the summons any- 
where in the world. A sheriff, however, 
may serve the summons only within his 
county. However, the mere service of the 
summons and complaint does not, of itself, 
resolve all questions as to jurisdiction over 
the person of the defendant, and any such 
questions may be raised at appropriate 
times. 

A party using a process server may pay 
such person any amount that is agreed 
upon. However, only that amount statuto- 



rily allowed to the sheriff under Miss. 
Code Ann. § 25-7-19 (Supp. 1984) may be 
taxed as recoverable costs in the action. 

Plaintiff is given the option under Rule 
4(c)(3) of obtaining service by first-class 
mail. Defendant's failure to complete and 
return one copy of the "Notice and Ac- 
knowledgment for Service by Mail" may 
trigger the cost-shifting provisions of Rule 
4(c)(3)(B). The provisions for service by 
first-class mail are modeled upon Federal 
Rule 4(c)(2)(C)(ii). The completion and re- 
turn of Form IB (Notice and Acknowledg- 
ment for Service by Mail) does not operate 
as a waiver of objections to jurisdiction. 
All jurisdictional objections are preserved 
whether Form IB is completed and re- 
turned from inside or outside the State. 

Rule 4(c)(4) provides for service of sum- 
mons by publication and generally tracks 
the previous statutory requirements for 
summons by publication under Miss. Code 
Ann. § 13-3-19 et seq. (1972). However, a 
few major changes should be noted. Under 
Rule 4(c)(4)(B), "[t]he defendant shall 
have thirty (30) days from the date of first 
publication in which to appear and de- 
fend." The thirty days from first publica- 
tion is a shorter time in which one must 
respond than was previously provided by 
statute. 

Publication under this rule is deemed 
complete with the third publication in 
those instances where the time of an event 
is related to completion of publication. 
However, it should be noted that this is 
not deemed to alter the time for response 
by defendant. 

It should be noted that there will be 
instances under Rule 4(c)(4)(E) where ser- 
vice by publication is appropriate for per- 
sons under disability, but service of the 
summons and complaint upon the "other 
person" required to be served under Rule 
4(d)(2) will not be appropriate by publica- 
tion because the "other person" may be 
found within the State of Mississippi. 

Rule (4)(c)(4)(C) continues the previous 
statutory requirement that the clerk send 
a copy of the summons (and now also of 
the complaint) by first-class mail to the 
address of the defendant. The mailing 
provides further opportunity to give de- 
fendant notice of the action. If the defen- 
dant's post office address is unknown to 



16 



RULES OF CIVIL PROCEDURE 



Rule 4 



plaintiff after diligent inquiry, then the 
mailing of the summons and complaint is 
not required. 

Rule 4(c)(5) provides for "Service by 
Certified Mail on Person Outside State" by 
sending a copy of the summons and com- 
plaint to the person to be served by certi- 
fied mail, return receipt requested. The 
certified mail procedure is not available to 
serve a person within the state. It is an 
alternative form of service because a per- 
son outside of the state may also be served 
under Rule 4(c)(1), 4(c)(3) or 4(c)(4). 

The Rule 4(c)(5) procedure supplants 
the circuitous procedures previously 
available to obtain in personam jurisdic- 
tion against nonresidents. E.g. Miss. Code 
Ann. § 13-3-63 (1972). However, the crite- 
ria for subjecting nonresidents to the ju- 
risdiction of Mississippi courts are those 
established by the legislature. 

Rule 4(d) provides the methods by 
which the summons and complaint may 
be served by a sheriff or process server. 
The basics of service follow generally the 
previous statutory practice under Miss. 
Code Ann. § 13-3-33 et seq. (1972). How- 
ever, there are differences which must be 
noted. Rule 4(d)(1)(A) tracks previous 
statutory practice by providing that rea- 
sonable diligence be made to deliver a 
copy of the complaint and summons to the 
person personally or to his authorized 
agent. Where the summons and complaint 
cannot be delivered to the defendant per- 
sonally, the copies may be delivered at 
defendant's usual place of abode by leav- 
ing the same with defendant's spouse or 
some other person of the defendant's fam- 
ily above the age of sixteen years who is 
willing to receive service. The correspond- 
ing Federal Rule 4(d)(1) has no such re- 
quirement. A new procedural safeguard 
has been added to this mode of "residence 
service." A copy of the summons and com- 
plaint must thereafter be mailed (first- 
class mail, postage prepaid) to the person 
to be served at the place where a copy of 
the summons and complaint were left. 
Such "residence service" of a summons is 
not deemed complete until the 10th day 
after such mailing. 

Rule 4(2)(A) provides for service upon 
an unmarried infant and makes several 
changes from previous practice. The un- 



married infant must only be served a copy 
of the summons and complaint if twelve 
years of age or older (previously there was 
no age limitation). The rule now specifies 
that the guardian served may be the 
guardian of either the person or of the 
estate of the unmarried minor, and such 
service is now permitted upon "the indi- 
vidual having care of such infant or with 
whom he lives" in addition to the infant's 
mother, father or legal guardian. This rule 
is not intended to depart from the basic 
concepts of traditional Mississippi prac- 
tice which must still be followed. See: 
Section 232, Griffith, Mississippi Chan- 
cery Practice. The record, exclusive of 
server's return, should reflect facts suffi- 
cient to establish service upon the proper 
person. 

Rule 4(e) provides for waiver of service 
of the summons and complaint and tracks 
the provisions of Miss. Code Ann. § 13-3- 
71(1) (Supp. 1984). The waiver must be 
dated and signed by the defendant after 
the day on which the action is commenced. 
A waiver may be executed without a sum- 
mons having been issued since for pur- 
poses of Rule 4(e) "commencing the ac- 
tion" means merely filing the complaint. 
Although the Statutory provisions of 
Miss. Code Ann. § 13-3-71(2) (Supp. 1984) 
dealing with when causes are triable after 
waiver by a fiduciary are not mentioned in 
Rule 4(e), such provisions are not in con- 
flict with Rule 4(e) and continue in effect. 

Rule 4(f) provides that the person serv- 
ing the process shall promptly flle a re- 
turn of service with the court. Prior to 
revision in 1997, the rule sanctioned mak- 
ing the return at any time before the 
person served was required to respond. 
The failure to promptly file a return may 
precipitate a default or defeat a defen- 
dant's right to remove the case. The pur- 
pose of the requirement for prompt filing 
is to avoid these problems that may arise 
when a defendant is unable to verify the 
date of service by examining the return of 
service in the court records. 

Rule 4(h) provides that service upon a 
defendant must be made within 120 days 
after the filing of the complaint or the 
cause will be dismissed without prejudice 
as to that defendant unless good cause can 
be shown as to why service could not be 
made. 



17 



Rule 4 



MISSISSIPPI COURT RULES 



[Comment adopted effective March 1, 
1986; amended effective February 1, 1990; 
July 1, 1998; April 13, 2000.] 



JUDICIAL DECISIONS 



Construction. 

Applicability. 

Commencement of action. 

Defenses. 

Dismissal. 

Due process. 

Filing of amended complaint as summons. 

Good cause. 

Jurisdiction. 

Notice In annexation cases. 

Service of process. 

Statute of limitations. 

Waiver. 

Construction, 

Miss. R. Civ. P. 4(h) states that if the 
120-day period elapses without service of 
process being effected, the action shall be 
dismissed upon the court's own initiative 
with notice to such party or upon motion 
and the comments state that the com- 
plaint will be dismissed unless good cause 
can be shown as to why service cannot be 
made; the rule therefore provides that the 
plaintiff will have an opportunity to show 
good cause after the 120-day period 
elapses. Webster v. Webster, 834 So. 2d 26 
(Miss. 2002). 

Miss. R. Civ. P. 4(h) does not require 
that a motion for additional time for ser- 
vice of process be filed within 120 days of 
the filing of the complaint. Webster v. 
Webster, 834 So. 2d 26 (Miss. 2002). 

It is apparent from reading the text of 
this rule that while the word "complaint" 
sometimes refers to a duplicate copy, the 
word "summons" means an original, not a 
duplicate or photocopy. Bilbo v. Thigpen, 
647 So. 2d 678 (Miss. 1994). 

Legislature created Public Employees' 
Retirement System in the juridical form of 
a corporation; as such. System was subject 
to service of process under subdivision 
(d)(4) of this rule as a "domestic corpora- 
tion," rather than under subdivision (d)(5) 
as a "department" or "institution" of the 
State. Public Employees' Retirement Sys. 
V. Dillon, 538 So. 2d 327 (Miss. 1988). 



Applicability. 

In a medical malpractice action, on re- 
mand from a first appeal denjdng an 
amended complaint, the trial court 
granted summary judgment for defen- 
dants based on the two-year limitations 
period. However, upon a petition for re- 
hearing, the appellate court held that 
based on the unique facts of the case, the 
amended complaint should have been 
treated as an original complaint as to the 
added parties; since the amended com- 
plaint was filed prior to the expiration of 
the statute of limitations (exactly two 
years after the alleged negligence), and a 
summons, along with the amended com- 
plaint, was served upon the added parties 
within the time period required by Miss. 
R. Civ. P. 4(h), the trial judge erred in 
granting summary judgment for defen- 
dants. Wilner v. White, 929 So. 2d 343 
(Miss. Ct. App. 2005), reversed by 929 So. 
2d 315, 2006 Miss. LEXIS 267 (Miss. 
2006). 

Party who is granted permission to in- 
tervene pursuant to M.R.C.P. Rule 
24(b)(2) is not required to issue a sum- 
mons and complaint pursuant to Rule 4; 
rather, service pursuant to Rule 5, of mo- 
tion to intervene accompanied by com- 
plaint, is sufficient service. Breland v. 
Smith-Johnson, Inc., 501 So. 2d 389 (Miss. 
1987). 

Commencement of action. 

Rule 3(a) and subsection (h) of this rule 
operate to the extent that the commence- 
ment date of an action is the date of filing, 
and that date obtains for statute of limi- 
tations purposes whenever the action is 
not dismissed, including those instances 
in which the action would have been dis- 
missed but for an extension of time. 
Crumpton v. Hegwood, 740 So. 2d 292 
(Miss. 1999). 

Defenses. 

A moving party has a choice of making a 
M.R.C.P. 4(h) objection to process by filing 
a M.R.C.P. 12(b)(4) or (5) motion prior to 



18 



RULES OF CIVIL PROCEDURE 



Rule 4 



filing a responsive pleading, by asserting 
other general affirmative defenses, or by 
filing them simultaneously therewith; the 
M.R.C.P. 4(h) defense is waived only after 
the filing of an answer or affirmative de- 
fenses if the defense is not asserted prior 
to or simultaneously within the answer. 
Rains v. Gardner, 731 So. 2d 1192 (Miss. 
1999). 

Dismissal. 

Trial judge correctly dismissed a per- 
sonal injury case with prejudice because 
plaintiff did not show good cause for the 
failure to serve defendant, under Miss. R. 
App. P. 4(h), and, as of the date of entry of 
the order granting the motion to set aside 
the order granting additional time to 
serve process and dismissing the com- 
plaint with prejudice, the three-year limi- 
tations period prescribed by Miss. Code 
Ann. § 15-1-49 had long since passed. 
Johnson v. Thomas, 982 So. 2d 405 (Miss. 
2008). 

Dismissal of a medical malpractice case 
under Miss. R. Civ. P. 41 was appropriate 
where no action was taken for four years, 
a first doctor was not served in the time 
required under Miss. R. Civ. P. 4, a patient 
failed to use other means of service avail- 
able, service was not effectuated until the 
statute of limitations had expired, and 
proof of service was not filed until after 
the case was dismissed; there was no need 
to show contumacious conduct because 
there was a clear record of delay, and no 
lesser sanctions would have better served 
the interests of justice since the passage of 
time might have altered the evidence. 
Hensarling V. Holly 972 So. 2d 716 (Miss. 
Ct. App. 2007), writ of certiorari denied by 
973 So. 2d 244, 2008 Miss. LEXIS 18 
(Miss. 2008). 

Miss. R. Civ. P. 4(h) does not state that 
notice be given to a party prior to a court's 
consideration of the dismissal of the case, 
only that the court notify the party of the 
dismissal itself; therefore, the notice pro- 
vided to a patient in a medical malpractice 
case in an order of dismissal was enough. 
Hensarling v. Holly, 972 So. 2d 716 (Miss. 
Ct. App. 2007), writ of certiorari denied by 
973 So. 2d 244, 2008 Miss. LEXIS 18 
(Miss. 2008). 

Burden is on a plaintiff to show good 
cause as to why service is not made within 



the 120 days allowed. Hensarling v. Holly, 
972 So. 2d 716 (Miss. Ct. App. 2007), writ 
of certiorari denied by 973 So. 2d 244, 
2008 Miss. LEXIS 18 (Miss. 2008). 

Leaving a process server a two-day win- 
dow to accomplish service of process with- 
out receiving some express assurance that 
process would in fact be served within two 
days leaves a plaintiff vulnerable to hav- 
ing the complaint dismissed if process is 
not timely served under Miss. R. Civ. P. 
4(h). Davis v. South Sunflower County 
Hosp., 956 So. 2d 1103 (Miss. Ct. App. 
2007). 

Trial court properly granted an insur- 
er's motion to dismiss plaintiff's pro se 
negligence action against the insurer and 
its insured where the record failed to 
confirm that plaintiff served either defen- 
dant, as plaintiff's statement alone did 
not satisfy Miss. R. Civ. P. 4(h); although 
the record contained certified mail re- 
ceipts for mailings sent by plaintiff to 
defendants, all of the receipts were dated 
after the case was dismissed by the trial 
judge. Sanders v. Robertson, 954 So. 2d 
493 (Miss. Ct. App. 2007). 

In a multi-party suit filed by plaintiffs 
who alleged various silica-related per- 
sonal injuries, the original complaint 
listed the incorrect agent for service of 
process for defendant; the documents 
were returned and plaintiffs made no fur- 
ther attempt to serve the complaint, and 
according to Miss. R. Civ. P. 4(h), dismissal 
of the action was required, and thus the 
trial court erred by denying the defen- 
dant's motion to dismiss. Bacou-Dalloz 
Safety Inc. v. Hall, 938 So. 2d 820 (Miss. 
2006). 

Plaintiff's personal injury suit against 
two manufacturers was dismissed be- 
cause plaintiff failed to effect service upon 
them within the 120-day period mandated 
in Miss. R. Civ. P. 4(h) while the suit was 
pending in a Mississippi state court prior 
to removal to federal court; plaintiff's ser- 
vice upon the manufacturers 123 days 
after filing the complaint was untimely, 
and plaintiff failed to offer any reason for 
the late service. Riley v. Ga. Pac. Corp., — 
F. Supp. 2d — , 2006 U.S. Dist. LEXIS 
1440 (N.D. Miss. Jan. 5, 2006), dismissed 
by 2006 U.S. Dist. LEXIS 1623 (N.D. 
Miss. Jan. 5, 2006). 



19 



Rule 4 



MISSISSIPPI COURT RULES 



Trial court's dismissal of an action for 
failure to serve process as required by 
Miss. R. Civ. P. 4 is not a "matter of form" 
for purposes of the savings statute, Miss. 
Code Ann. § 15-1-69. Additionally, if ser- 
vice of process is not made upon a defen- 
dant in compliance with Miss. R. Civ. P. 
4(h), the limitations period beings to run 
again at the end of 120 days. Owens v. 
Mai, 891 So. 2d 220 (Miss. 2005). 

Where one defendant manufacturer 
was served by mail under Miss. R. Civ. P. 
4(c)(5), but the process served was not 
addressed to any particular person as re- 
quired by Miss. R. Civ. P. 4(d)(4), and an 
employee who signed for the delivery was 
not authorized to receive process; and as 
to a second defendant manufacturer, the 
postal service erroneously allowed the 
properly addressed certified mail to be 
signed for by a mail clerk who was not 
authorized; and the third defendant man- 
ufacturer was timely and properly served, 
defendants moved for relief from entry of 
default and default judgment on the basis 
that they were not properly served with 
process. The court concluded that service 
of process was not effective as to either of 
the defendants; the entries of default and 
of the default judgment are void, having 
been entered without jurisdiction over 
those parties. Brown v. Bristol-Myers 
Squibb Co., — F. Supp. 2d — , 2002 U.S. 
Dist. LEXIS 27445 (S.D. Miss. Nov. 30, 
2002). 

Claim of negligent operation against a 
16-year-old driver was properly dismissed 
as plaintiffs never attempted to serve the 
driver's parents when they served the 
lawsuit on the driver. Davis v. Seymour, 
868 So. 2d 1061 (Miss. Ct. App. 2004). 

Issue on appeal was one of whether the 
receptionist, through custom and practice, 
had a de facto appointment to receive 
service of process for the physician, re- 
quiring a consideration of the principles of 
agency law; no live testimony was offered 
on the motion to dismiss, but the affidavit 
of the receptionist established that the 
process server never identified herself, or 
identified the contents of subject envelope 
containing the complaint and the sum- 
mons, and that the receptionist's duties 
were simply to check patients in and out, 
and therefore, the evidence was insuffi- 



cient to hold that the receptionist was the 
agent of the physician. Cooley v. Brawner, 
881 So. 2d 300 (Miss. Ct. App. 2004), cert, 
denied, 882 So. 2d 772 (Miss. 2004). 

Prisoner's suit challenging the constitu- 
tionality of an amendment to the parole 
statutes did not have to be dismissed due 
to the absence of any proof of service of 
process, since the State participated in the 
appeal, thereby waiving proper service 
under Miss. R. Civ. P. 4(e). McClurg v. 
State, — So. 2d — , 2003 Miss. App. LEXIS 
592 (Miss. Ct. App. June 24, 2003), opin- 
ion withdrawn by 2004 Miss. App. LEXIS 
413 (Miss. Ct. App. Apr. 13, 2004), substi- 
tuted opinion at 870 So. 2d 681, 2004 
Miss. App. LEXIS 572 (Miss. Ct. App. 
2004). 

In a case alleging medical negligence 
arising from an emergency appendectomy 
performed by a doctor on the parents' 
minor child, although the doctor had ac- 
tual notice of the complaint because the 
father had served the doctor with the 
parents' complaint, the trial court did not 
abuse its discretion in dismissing the par- 
ents' complaint for failure to serve process 
within 120 days in accordance with Miss. 
R. Civ. P. 4(h) because the parents, who 
were pro se litigants, had to, but failed to 
strictly comply with Rule 4(h). Perry v. 
Andy, 858 So. 2d 143 (Miss. 2003). 

By filing a motion seeking dismissal of 
the complaint, the defendant did not make 
a general appearance in the case and thus 
did not waive any defects in the serving of 
process, including its untimeliness under 
subsection (h). Rains v. Gardner, 719 So. 
2d 768 (Miss. Ct. App. 1998), aff'd, 731 So. 
2d 1192 (Miss. 1999). 

The joinder of a statute of limitations 
defense in a motion to dismiss for the 
untimeliness of service of process under 
subsection (h) did not constitute a waiver 
of the defendant's right to pursue relief 
under subsection (h). Rains v. Gardner, 
719 So. 2d 768 (Miss. Ct. App. 1998), aff'd, 
731 So. 2d 1192 (Miss. 1999). 

Trial court did not err in dismissing 
medical malpractice action, where service 
was made only after plaintiffs filed their 
amended complaint, more than a year 
after filing their initial complaint and well 
after 120-day period following initial com- 
plaint, and plaintiffs failed to show good 



20 



RULES OF CIVIL PROCEDURE 



Rule 4 



cause for the delay. Waiters v. Stripling, 
675 So. 2d 1242 (Miss. 1996). 

Due process. 

Husband was denied due process by 
adjudication of child custody and support 
matters in his absence, where summons 
with which he was served was a M.R.C.P. 
Rule 4 alias summons, which did not set a 
time, date and place for hearing on com- 
plaint; proper procedure would have been 
to serve husband with motion for modifi- 
cation and a Rule 81 summons, setting a 
time and date for hearing. Powell v. Pow- 
ell, 644 So. 2d 269 (Miss. 1994). 

Filing of amended complaint as sum- 
mons. 

Trial court erred in dismissing, pursu- 
ant to Miss. R. Civ. P. 12, a purchaser's 
action to recover for defects in a mobile 
home; the purchaser's act of filing an 
amended complaint within the relevant 
statute of limitations, Miss. Code Ann. 
§ 63-17-159(6), was sufficient to defeat 
defendants' motion to dismiss, as the 
amended complaint, filed pursuant to 
Miss. R. Civ. P. 15, provided defendants 
with the required notice under Miss. R. 
Civ. P 4. King v. Am. RV Ctrs., Inc., 862 
So. 2d 558 (Miss. Ct. App. 2003). 

Good cause. 

In a case arising from an automobile 
accident, a trial court did not err in find- 
ing that plaintiff had failed to properly 
serve defendant and that she had not 
demonstrated good cause. Plaintiff failed 
to effectuate service of process within 120 
days of filing her complaint, and her mo- 
tion requesting additional time to serve 
was untimely filed; plaintiff unsuccess- 
fully argued that she acted diligently and 
claimed defendant moving to Colorado, 
marrying, and changing her last name 
was an understandable mitigating cir- 
cumstance. Shaver v. Blackwell, 43 So. 3d 
1155 (Miss. Ct. App. 2010), writ of certio- 
rari denied by 49 So. 3d 106, 2010 Miss. 
LEXIS 481 (Miss. 2010). 

Motion to quash process and dismiss 
under Miss. R. Civ. P. 12(b) based on a 
failure to comply with Miss. R. Civ. P. 4(h) 
was properly denied because good cause 
was shown where there was a diligent 
effort to try and effectuate service; appel- 



lee tried in vain to locate an address for 
appellant, and she immediately contacted 
the Mississippi Secretary of State after 
seeing appellant on television promoting a 
company. Jenkins v. Oswald, 3 So. 3d 746 
(Miss. 2009). 

Trial court properly granted a hospital's 
motion to dismiss a medical malpractice 
suit, finding no^ood cause for the failure 
of a patient's family to serve a summons 
upon the hospital during the 120-day time 
period, under Miss. R. Civ. P. 4(h), and 
finding that the two-year statute of limi- 
tations, under Miss. Code Ann. § 15-1- 
36(2), had expired. Lucas v. Baptist Mem. 
Hosp. - N. Miss., Inc., 997 So. 2d 226 
(Miss. Ct. App. 2008). 

In a medical malpractice/wrongful 
death case, defendant doctor's motion to 
dismiss for failure to timely effect service 
of process under Miss. R. Civ. P. 4(h) was 
properly denied because the trial court 
found good cause for the failure where 
plaintiff"'s counsel retained local counsel, 
who was to effect service of process; where 
local counsel failed to do so; where counsel 
learned of local counsel's failure on day 
118, took immediate action, and effected 
service on day 121; and where local coun- 
sel withdrew from the case. Foss v. Wil- 
liams, 993 So. 2d 378 (Miss. 2008). 

Once a party has received a first exten- 
sion of time under Miss. R. Civ. P. 4(h) in 
which to serve process, a second or subse- 
quent extension of time to effectuate ser- 
vice of process may be granted by a trial 
court only upon a showing of good cause; 
in other words, once the initial 120-day 
period after filing the complaint has 
elapsed, good cause is required to avoid 
dismissal. While Miss. R. Civ P. 6(b)(1) 
provides for an enlargement of time for 
cause shown, when reading the two Rules 
together, it is apparent that Miss. R. Civ. 
P. 4(h) requires good cause after the expi- 
ration of 120 days. Johnson v. Thomas, 
982 So. 2d 405 (Miss. 2008). 

Trial judge did not abuse his discretion 
by voiding his order granting a second 
extension of time to serve process because 
(1) Miss. R. App. P. 4(h) required good 
cause after the expiration of 120 days; (2) 
the trial judge never was given the oppor- 
tunity to perform his affirmative respon- 
sibility to accord the absent party just 



21 



Rule 4 



MISSISSIPPI COURT RULES 



consideration, as required by Miss. R. 
Prof. Conduct 3.3(d), cmt., because plain- 
tiff's attorney did not present to the trial 
judge the facts known to her, such as 
defendant being represented by an attor- 
ney, the identity of that attorney, defen- 
dant's previous filing of a motion to dis- 
miss, and the settlement negotiations 
between the attorneys; and (3) the trial 
judge did not have all the material facts 
before him when granting the second ex- 
tension of time. Johnson v. Thomas, 982 
So. 2d 405 (Miss. 2008). 

Trial judge did not abuse his discretion 
in finding that the fact that the investiga- 
tor for plaintiff's attorney was out of the 
office for a substantial period of time was 
not good cause for the failure to serve 
defendant, under Miss. R. App. R 4(h). 
Johnson v. Thomas, 982 So. 2d 405 (Miss. 
2008). 

Dismissal of plaintiffs' medical malprac- 
tice action was reversed, and the action 
was remanded for trial, because the cir- 
cuit court erred when it did not find good 
cause for plaintiffs' failure to serve the 
doctor within the mandated time for ser- 
vice of process; plaintiffs had reason to 
believe that the process server success- 
fully served the doctor (the process server 
completed a return and indicated as 
much), the communications from the doc- 
tor's attorneys suggested that the doctor 
had notice of the suit, and because the 
doctor's attorneys indicated that the doc- 
tor was involved in a bankruptcy proceed- 
ing, even if they knew the process server 
improperly served the doctor, plaintiffs 
would not have taken further action due 
to the automatic stay involved with the 
doctor's bankruptcy. Spurgeon v. Egger, 
989 So. 2d 901 (Miss. Ct. App. 2007), writ 
of certiorari denied by 993 So. 2d 832, 
2008 Miss. LEXIS 388 (Miss. 2008). 

Circuit court's judgment dismissing the 
hospital from the beneficiaries' wrongful 
death suit was supported by substantial 
evidence where, under Miss. R. Civ. P. 
4(h), the original plaintiff did not cause 
process to issue for the hospital, the orig- 
inal plaintiff did not ask for an extension 
of time to serve the hospital, and the 
hospital did not attempt to evade process. 
Long V. Mem'l Hosp. at Gulfport, 969 So. 
2d 35 (Miss. 2007). 



Trial court properly dismissed a negli- 
gence action due to failure to effect service 
of process within the 120-day period set by 
Miss. R. Civ. P. 4(h), notwithstanding a 
paralegal's alleged "honest mistake" in 
calculating the date, because simple inad- 
vertence or mistake of counsel constituted 
neither good cause nor excusable neglect. 
Shelton v. Lift, Inc., 967 So. 2d 1254 (Miss. 
Ct. App. 2007). 

In a medical malpractice action, a pa- 
tient did not show good cause why she 
failed to serve process on a hospital within 
the 120-day period outlined in Miss. R. 
Civ. P. 4(h); although the process server 
took 31 days to serve the hospital, the 
patient waited until 118 days after the 
complaint was filed to bring the docu- 
ments to the process server, and thus it 
was largely the patient's own failure to act 
diligently that resulted in the untimely 
service. Davis v. South Sunflower County 
Hosp., 956 So. 2d 1103 (Miss. Ct. App. 
2007). 

In a son's negligence action against his 
father, the son failed to show good cause 
for why process was not served on the 
father until nine months after the expira- 
tion of the 120-day period in Miss. R. Civ. 
P. 4(h) where: (1) the events pertaining to 
the father's attempts to evade service of 
process arose after the 120-day period for 
serving process; (2) the son only at- 
tempted to serve process one time during 
the 120-day period; and (3) the son failed 
to show that he exercised due diligence by 
moving for additional time to effect ser- 
vice prior to the expiration of the 120-day 
period. Whitten v. Whitten, 956 So. 2d 
1093 (Miss. Ct. App. 2007). 

Mississippi supreme court has inter- 
preted Miss. R. Civ. P. 4(h) to stand for the 
proposition that a plaintiff must serve a 
defendant with process within 120 days or 
show good cause why service was not 
made; the supreme court has held that to 
establish "good cause," the plaintiff must 
demonstrate at least as much as would be 
required to show excusable neglect, as to 
which simple inadvertence or mistake of 
counsel or ignorance of the rules usually 
does not suffice. Sanders v. Robertson, 954 
So. 2d 493 (Miss. Ct. App. 2007). 

Motion for extension of time filed after 
expiration of initial time under Miss. R. 



22 



RULES OF CIVIL PROCEDURE 



Rule 4 



Civ. P. 6(b)(2) was properly denied, even 
though the trial court did not at first 
address good cause, as required by Miss. 
R. Civ. P. 4(h); the trial court cured its own 
error by finding good cause had not been 
shown and the statute of limitations had 
expired. Heard v. Remy, 937 So. 2d 939 
(Miss. 2006). 

Trial court did not err in dismissing 
complaint where plaintiff's failed to dem- 
onstrate good cause, as required by Miss. 
R. Civ. P. 4(h), for failing to serve process 
within 120 days of filing complaint where 
the justification offered by plaintiff's for 
the first extension of time, did not exactly 
match the justification offered on appeal, 
the Supreme Court of Mississippi also 
found the representations of counsel to 
have been less than forthright with regard 
to the claimed reason's for the second 
extension, and regarding the third exten- 
sion, the court was given no evidence or 
indication that plaintiffs used reasonable 
diligence to serve process prior to their 
attorney's death. Montgomery v. 
SmithKline Beecham Corp., 910 So. 2d 
541 (Miss. 2005). 

Where second motion to extend time in 
which to serve process stated that plain- 
tiff's law firm had withdrawn but not 
returned the file and the firm who took the 
file back had no reason to know that 
service had not been made prior to the 
withdrawal, the representations of coun- 
sel were less than forthright because 
counsel had in fact been counsel of record 
since its inception, and as counsel of re- 
cord, maintained all the duties and obli- 
gations to the client. Montgomery v. 
SmithKline Beecham Corp., 910 So. 2d 
541 (Miss. 2005). 

Dismissal of civil suit was reversed and 
remanded because the circuit court did 
not make a finding pertaining to whether 
good cause existed for the claimant's fail- 
ure to serve the driver with in the 120-day 
rule, when the circuit court merely held 
that the driver's motion to dismiss was 
well taken and should be granted, and the 
claimant did make several attempts to 
locate and serve the driver within the 
120-day period, searching through both 
telephone and utility directories and re- 
peatedly engaging process servers. Page v. 
Crawford, 883 So. 2d 609 (Miss. Ct. App. 
2004). 



Court erred in denying a truck driver's 
motion to dismiss plaintiff's personal in- 
jury action because plaintiff offered no 
explanation or cause, good or bad, for the 
failure to serve the truck driver within the 
120-day period required by Miss. R. Civ. P. 
4(h). TViple 'C Transp., Inc. v. Dickens, 
870 So. 2d 1195 (Miss. 2004). 

Trial court properly granted the pa- 
tient's motion for an extension of time in 
which to serve defendants where the trial 
court found good cause for why service 
was not made within 120 days as required 
by Miss. R. Civ. P. 4(h); neither physician 
asserted that the trial court had abused 
its discretion, and the record supported 
the trial court's findings of good cause. 
Medlin v. Hazlehurst Emergency Physi- 
cians, — So. 2d — , 2004 Miss. LEXIS 10 
(Miss. Jan. 15, 2004), opinion withdrawn 
by 2004 Miss. LEXIS 1297 (Miss. Sept. 23, 
2004), opinion withdrawn by 2004 Miss. 
LEXIS 1298 (Miss. Sept. 23, 2004), opin- 
ion withdrawn by 2004 Miss. LEXIS 1299 
(Miss. Sept. 23, 2004), opinion withdrawn 
by 2004 Miss. LEXIS 1301 (Miss. Sept. 23, 
2004), opinion withdrawn by, substituted 
opinion at 889 So. 2d 496, 2004 Miss. 
LEXIS 1196 (Miss. 2004). 

The fact that a resident defendant has 
not been timely served with process does 
not justify removal by the non-resident 
defendants; whenever federal jurisdiction 
in a removal case depends upon complete 
diversity, the existence of diversity is de- 
termined from the fact of citizenship of the 
parties named and not from the fact of 
service. Lauderdale v. Merck & Co., 219 F. 
Supp. 2d 747 (N.D. Miss. 2002). 

Good faith negotiations between an in- 
jured bus passenger and a transit author- 
ity did not constitute good cause for fail- 
ure to effect timely service of process on 
the transit authority within 120 days af- 
ter the passenger filed his complaint as 
required by Miss. R. Civ. P. 4(h) because 
reliance on indefinite good faith negotia- 
tions subverted the purpose of the rule 
which was to bring claims to a court for 
judicial review in a timely manner; how- 
ever, the trial court's involuntary dismis- 
sal of the case was modified to be without 
prejudice. Holmes v. Coast Transit Auth., 
815 So. 2d 1183 (Miss. 2002). 

Attorney's failure to monitor the status 
of the claimant's personal injury lawsuit 



23 



Rule 4 



MISSISSIPPI COURT RULES 



against a casino was not good cause for 
the attorney's failure to effect service 
within 120 days; dismissal with prejudice 
was appropriate because the statute of 
limitations had run. In re Holtzman, 823 
So. 2d 1180 (Miss. 2002). 

Determination of whether good cause 
existed under subsection (h) was a discre- 
tionary ruling by the trial court and enti- 
tled to deferential review of whether the 
trial court had abused its discretion and 
whether there was substantial evidence 
supporting the determination. LeBlanc v. 
Allstate Ins. Co., 809 So. 2d 674 (Miss. 
2002). 

Substantial evidence supports the chan- 
cellor's finding of fact that there was no 
good cause for a two-year delay in service 
of process where the plaintiff never re- 
quested an extension of time from the 
court and failed to communicate with 
those who knew where to find the defen- 
dant. Young V. Hooker, 753 So. 2d 456 
(Miss. Ct. App. 1999). 

The plaintiff failed to show good cause 
for his failure to serve the defendant 
within 120 days after the filing of the 
complaint where the complaint was filed 
on October 25, 1996, service was not at- 
tempted until February 21, 1997 and, al- 
though it was contended that service was 
thwarted by the defendant and others, the 
plaintiff knew where to find the defendant 
and failed to serve him during the 120 day 
period. Bang v. Pittman, 749 So. 2d 47 
(Miss. 1999). 

Jurisdiction. 

Husband in a divorce proceeding 
claimed that the chancery court lacked 
personal jurisdiction; however, the hus- 
band, by his conduct, was deemed to have 
submitted to jurisdiction. Pace v. Pace, 16 
So. 3d 734 (Miss. Ct. App. 2009). 

Chancery court had no jurisdiction to 
enter money judgment against husband 
served through notice by publication, 
where he made neither an answer nor a 
general appearance. Hamm v. Hall, 693 
So. 2d 906 (Miss. 1997). 

Where process was served on non-resi- 
dent defendants by posting summons on 
door of their weekend home in Missis- 
sippi, trial court lacked jurisdiction over 
them due to insufficient service of process. 
Alpaugh V. Moore, 568 So. 2d 291 (Miss. 



1990), (decided under prior version of this 
rule). 

Issues of alimony and child support 
could not be considered in absence of per- 
sonal service of process under subdivision 
(c)(5) of this rule, or defendant's general 
appearance. O'Neill v. O'Neill, 515 So. 2d 
1208 (Miss. 1987). 

Summons issued under subdivision 
(c)(4)(C) of this rule was insufficient to 
confer personal jurisdiction over non-res- 
ident defendant, for purposes of rendering 
a monetary judgment against him, absent 
his appearance. Noble v. Noble, 502 So. 2d 
317 (Miss. 1987). 

Notice In annexation cases. 

Objectors to the annexation contended 
that the city failed to prove that adequate 
notice was given. However, in the affidavit 
filed by the city, the affiant specifically 
stated the exact locations and dates of his 
postings of notice of the hearings in his 
affidavit as required by Miss. R. Civ. P. 4(f) 
and Miss. Code Ann. § 21-1-15 and Miss. 
Code Ann. § 21-1-31; the chancellor did 
not commit manifest error by allowing the 
detailed affidavit to constitute adequate 
proof of notice. Weeks v. City of Clinton (In 
re City of Clinton), 920 So. 2d 452 (Miss. 
2006). 

Service of process. 

When a lender failed to comply with 
Miss. R. Civ. P. 4(c)(4)(A) by attesting that 
it had performed a diligent inquiry before 
performing service by publication on a 
borrower, a default judgment entered 
against the borrower was void; thus, the 
chancery court erred in refusing to set the 
void judgment aside under Miss. R. Civ. P. 
60(b)(4). Turner v. Deutsche Bank Nat'l 
Trust Co., 65 So. 3d 336 (Miss. Ct. App. 
2011). 

Nephew was properly noticed in the 
estate proceeding because the chancery 
court's docket showed that a summons 
was issued to both the nephew and his 
mother, giving them notice of the probate 
of a decedent's estate, and that the sum- 
monses were returned. Walton v. Walton, 
52 So. 3d 468 (Miss. Ct. App. 2011). 

Trial court erred by finding that defen- 
dant was properly served because the ser- 
vice of process upon defendant by certified 
mail, which was returned to sender 



24 



RULES OF CIVIL PROCEDURE 



Rule 4 



marked "unclaimed/refused" failed to com- 
ply with Miss. R. Civ. P. 4(c)(5) since 
"unclaimed" and "refused" had two en- 
tirely different meanings, and there was 
no way to know which meaning applied in 
the case; a returned envelope marked "un- 
claimed" is insufficient to satisfy service 
requirements under Rule 4(c)(5) because 
the designation of "unclaimed/refused" 
renders impossible a determination 
whether the mailing was refused or un- 
claimed. Bloodgood V. Leatherwood, 25 So. 
3d 1047 (Miss. 2010). 

Chancellor lacked jurisdiction over the 
divorce action because the husband was 
improperly served with a Miss. R. Civ. R 
81 summons, rather than the required 
Miss. R. Civ. P. 4 summons. For that 
reason, the chancellor's judgment of di- 
vorce was void, as were all determinations 
therein, including the chancellor's awards 
of alimony, child custody, and child sup- 
port; therefore, the chancellor erred in 
refusing to set aside the judgment pursu- 
ant to Miss. R. Civ. P 60(b). Clark v. Clark, 
43 So. 3d 496 (Miss. Ct. App. 2010), writ of 
certiorari denied by 49 So. 3d 106, 2010 
Miss. LEXIS 467 (Miss. 2010). 

Under Miss. R. Civ. P. 4(c)(4), proper 
service upon a non-resident defendant re- 
quires that notice be published and, a copy 
of the summons and complaint mailed to 
the defendant's last known address; pro- 
cess is not complete until a copy has been 
mailed. Covington v. Griffin, 19 So. 3d 805 
(Miss. Ct. App. 2009). 

There was no error with the chancellor's 
ruling that appellee was not properly 
served with process when the complaint 
was not mailed to her last known ad- 
dresses until after the chancery clerk en- 
tered a default; while the clerk eventually 
did mail a copj'^ of the summons and com- 
plaint, the chancellor found they were not 
mailed until after the entry of default. It 
was not sufficient, as appellants argued, 
that appellee found out about the proceed- 
ing approximately two weeks before de- 
fault judgment was entered against her; 
improper service of process, coupled with 
appellee's failure to appear rendered the 
default judgment against her void. Cov- 
ington V. Griffin, 19 So. 3d 805 (Miss. Ct. 
App. 2009). 

Appl3dng Miss. R. Civ. P. 15(c), the pa- 
tient's proposed amended complaint did 



arise out of the same transaction, but 
there was no evidence that the medical 
company received any notice of the insti- 
tution of the present medical negligence 
action until after the time period for ser- 
vice of process had expired. Thus, the 
patient failed to meet the requirements of 
Rule 15(c) and seeing as the company was 
not a defendant, in the case, it was not 
error for the circuit court to refuse to allow 
the patient to serve the company with 
process, and Miss. R. Civ. P. 4(h) was 
inapplicable. Johnson v. Lee, 17 So. 3d 
1140 (Miss. Ct. App. 2009). 

Chancery court was not required, under 
Miss. R. Civ. P. 40(b), to send a husband 
notice of a divorce hearing because the 
husband did not respond to the chancery 
court regarding the action, after he was 
personally served with process, under 
Miss. R. Civ. P. 4(h), within 120 days of the 
filing of the complaint by a wife. Carlisle v. 
Carhsle, 11 So. 3d 142 (Miss. Ct. App. 
2009). 

Buyer failed to effect proper service on a 
German seller because the buyer did not 
comply with the Hague Convention on the 
Service Abroad of Judicial and Extrajudi- 
cial Documents in Civil and Commercial 
Matters, Nov. 15, 1965, 20 U.S.T. 361, 362 
T.I.A.S. No. 6638, with service by mail on 
the seller and the buyer failed to show 
that a sister corporation in the U.S. was 
an alter ego of the buyer to establish that 
it was a domestic agent for valid service of 
process under Fed. R. Civ. P. 4(e) and 
Miss. R. Civ. P 4(d)(4). Delta Construc- 
tors, Inc. V. Roediger Vacuum, GmbH, 259 
F.R.D. 245 (S.D. Miss. 2009). 

Trial court properly dismissed a pa- 
tient's medical malpractice action against 
a nonresident physician because the pa- 
tient failed to comply with the dictates of 
Miss. R. Civ. P. 4(c)(5) by failing to mark 
the mailed envelope containing the sum- 
mons and complaint "restricted delivery." 
Worthy v. Trainor, 11 So. 3d 1267 (Miss. 
Ct. App. 2009). 

Chancery court erred in entering a de- 
fault judgment against a construction cor- 
poration in homeowners' action for slan- 
der of title because the homeowners 
mailed process to an attorney as the cor- 
poration's agent when, in fact, the corpo- 
ration's owner was actually the corpora- 



25 



Rule 4 



MISSISSIPPI COURT RULES 



tion's registered agent for service of 
process under Miss. R. Civ. P. 4(d). Tucker 
V. Williams, 7 So. 3d 961 (Miss. Ct. App. 
2009). 

Where the process issued to defendants 
was deficient and not in substantial com- 
pliance with Miss. R. Civ. P. 4(b), a pro se 
response by one defendant might have 
constituted an appearance under Miss. R. 
Civ. P. 55, but was not a valid answer 
because it did not comport with the filing 
requirement of Miss. R. Civ. P. 5(d). Flet- 
cher V. Limeco Corp., 996 So. 2d 773 (Miss. 
2008), remanded by 32 So. 3d 429, 2010 
Miss. LEXIS 182 (Miss. 2010). 

In an action arising from alleged defects 
in plaintiff purchasers' manufactured 
home, the trial court lacked jurisdiction to 
issue a default judgment pursuant to 
Miss. R. Civ. P. 55(b) against defendant 
bank, a nonresident corporation, because 
defendant was never properly served with 
process under Miss. R. Civ. P. 4(c)(5) and 
(d)(4) where the uncontested evidence 
showed that the person who signed for the 
process was a mailroom clerk who was not 
defendant's agent for service of process. 
Flagstar Bank v. Danos, 46 So. 3d 348 
(Miss. Ct. App. 2008), reversed en banc by 
46 So. 3d 298, 2010 Miss. LEXIS 457 
(Miss. 2010). 

Service was effected under Miss. R. Civ. 
P. 4(d)(1)(A) when defendant California 
resident turned away, not accepting the 
summons and complaint, and the server 
then left the papers on the ground stating 
he had been served, thus, since service 
was 7 months before he removed the ac- 
tion filed by plaintiff Mississippi resident, 
remand was proper due to the untimely 
removal under 28 U.S.C.S. § 1446(b); just 
as under Fed. R. Civ. P. 4(e)(2), "in hand" 
delivery was not required. Slaieh v. 
Zeineh, 539 F. Supp. 2d 864 (S.D. Miss. 
2008). 

In a case in which a former employee 
served her amended complaint on an un- 
named employee at her former employer's 
office on September 13, 2007, that service 
was not effective. The employer's notice of 
removal was timely because process was 
not effected until it was delivered to the 
employer's Board of Directors on October 
5, 2007, and the removal was made on 
October 24, 2007. Benson v. Family 



Health Ctr., Inc., — F. Supp. 2d — , 2008 
U.S. Dist. LEXIS 12025 (S.D. Miss. Jan. 
30, 2008), transfer denied by 2008 U.S. 
Dist. LEXIS 121048 (S.D. Miss. Mar. 26, 
2008), affirmed by 339 Fed. Appx. 486, 
2009 U.S. App. LEXIS 17458 (5th Cir. 
Miss. 2009); Humes-Pollett v. Family 
Health Ctr., Inc., — F. Supp. 2d — , 2008 
U.S. Dist. LEXIS 12098 (S.D. Miss. Jan. 
30, 2008), transfer denied by 2008 U.S. 
Dist. LEXIS 121043 (S.D. Miss. Mar. 26, 
2008), affirmed by 339 Fed. Appx. 490, 
2009 U.S. App. LEXIS 17474 (5th Cir. 
Miss. 2009). 

While plaintiffs erred in naming a sher- 
iff's department as a defendant in a per- 
sonal injury suit, the trial court erred in 
denying plaintiffs' motion for leave to 
amend the complaint pursuant to Miss. R. 
Civ. P. 15(c) to add a county as a defendant 
where, pursuant to Miss. R. Civ. P. 4(d)(6), 
plaintiffs' notice of claim letter put the 
proper county official on notice that, ex- 
cept for the mistake of naming the wrong 
party, the action would have been brought 
against the county. Mieger v. Pearl River 
County, 986 So. 2d 1025 (Miss. Ct. App. 
2008), writ of certiorari denied by 987 So. 
2d 451, 2008 Miss. LEXIS 371 (Miss. 
2008). 

Circuit court did not err when it con- 
cluded that defendant doctor's office assis- 
tant did not have apparent authority to 
accept service of process on the doctor's 
behalf, where the process server did not 
identify himself as a process server and 
did not ask whether the office assistant 
could accept process for the doctor, and 
the office assistant did not realize that the 
process server attempted to serve the doc- 
tor through her until the doctor read the 
contents of the envelope. Spurgeon v. 
Egger, 989 So. 2d 901 (Miss. Ct. App. 
2007), writ of certiorari denied by 993 So. 
2d 832, 2008 Miss. LEXIS 388 (Miss. 
2008). 

Sheriff's service on physician's recep- 
tionist in medical malpractice suit was not 
sufficient to satisfy service of process re- 
quirements because the receptionist was 
not an authorized agent to accept service 
of process. Johnson v. Rao, 952 So. 2d 151 
(Miss. 2007). 

Trial court properly granted a universi- 
ty's motion to dismiss plaintiff's personal 



26 



RULES OF CIVIL PROCEDURE 



Rule 4 



injury complaint where service of process 
was made on the president of the univer- 
sity, rather than on the Attorney General 
of the State of Mississippi, as required by 
Miss. R. Civ P. 4(d)(5); plaintiff did not 
serve the Attorney General until after the 
expiration of the 120-day period man- 
dated by Rule 4(h). Jones v. Miss. State 
Univ., 948 So. 2d 509 (Miss. Ct. App. 
2007). 

Miss. R. Civ P. 4(d)(5) requires that 
service on a state institution be made by 
serving the Mississippi Attorney General. 
Jones V. Miss. State Univ., 948 So. 2d 509 
(Miss. Ct. App. 2007). 

There is no ambiguity in Miss. R. Civ. P. 
4(d)(5). Jones v Miss. State Univ, 948 So. 
2d 509 (Miss. Ct. App. 2007). 

Although a state hospital and a state 
mental health department were estab- 
lished and controlled by Miss. Code Ann. 
§ 41-4-11(2) and Miss. Code Ann. § 41- 
4-5 and service of process was governed by 
Miss. R. Civ. P. 4(d)(5), requiring service 
upon the Attorney General, the entities 
waived the defenses of insufficient process 
and insufficient service of process because 
even though the defenses were properly 
and timely raised in their answer to a 
wrongful death action, their subsequent 
participation in litigation and their failure 
to pursue the defenses for two years 
waived the defenses. East Miss. State 
Hosp. V. Adams, 947 So. 2d 887 (Miss. 
2007). 

Where an estate mistakenly named a 
nursing home and personnel, and the es- 
tate failed to properly substitute any de- 
fendant for a fictitious party under Miss. 
R. Civ. P. 9(h), the amended complaint 
related back as to four of the defendants 
because they were the same owners and 
managers as the amended nursing home 
and had notice under Miss. R. Civ. P. 15(c), 
but the amended complaint did not relate 
back as to two defendants that did not 
have notice of the original complaint; 
therefore, those two defendant's were not 
timely served under Miss. R. Civ. P. 4(h). 
Bedford Health Props., LLC v. Estate of 
Wilhams, 946 So. 2d 335 (Miss. 2006). 

Worker's asbestos claim against a cor- 
poration for whom he had made products 
was dismissed for failure to timely serve 
the complaint within 120 days under 



Miss. R. Civ. P. 4(h), which in turn caused 
the statute of limitations in Miss. Code 
Ann. § 15-1-49(1), (2), to resume running 
and expire, barring his claims under Fed. 
R. Civ. P 12(b)(6). Riley v Ga. Pac. Corp., 
— F. Supp. 2d — , 2006 U.S. Dist. LEXIS 
1623 (N.D. Miss. Jan. 5, 2006), dismissed 
by 2006 U.S. Dist. LEXIS 1625 (N.D. 
Miss. Jan. 5, 2006). 

Trial court did not abuse its discretion 
in denying a motorist's motion to dismiss 
another driver's complaint in a personal 
injury matter arising out of a four-car 
accident because the other driver had 
made diligent attempts to complete ser- 
vice of process on the motorist; moreover, 
while the motorist was correct in his as- 
sertion that, for service by publication. 
Miss. R. Civ. P. 4 required that the pro- 
ceeding must be in chancery court, or 
authorized by statute, his assertion that a 
defendant must be a nonresident of the 
state of Mississippi was incorrect. Bennett 
V. McCaffrey 937 So. 2d 11 (Miss. 2006). 

Tax sale of property was void because 
the three methods of service under Miss. 
Code Ann. § 27-43-3 were not satisfied; 
although two methods were completed, 
posting a notice of redemption on the 
owner's business was not one of the ac- 
ceptable methods under Miss. R. Civ. P. 4. 
Viking Invs.,LLC v. Addison Body Shop, 
Inc., 931 So. 2d 679 (Miss. Ct. App. 2006). 

Trial court properly granted an exten- 
sion of time for the plaintiff to serve pro- 
cess because Miss. R. Civ. P. 4(h) clearly 
did not apply to a motion for additional 
time filed within the initial 120 days. 
There was no requirement that during the 
initial 120-day period, a plaintiff had to 
show good cause in order to obtain addi- 
tional time in which to serve process. 
Cross Creek Prods, v. Scafidi, 911 So. 2d 
958 (Miss. 2005). 

Where executrix filed a complaint to 
admit the decedent's will to probate in 
solemn form, a Miss. R. Civ. P. 81 matter, 
but decedent's brother was served notice 
pursuant to Miss. R. Civ. P. 4, the trial 
court erred in admitting the will in solemn 
form, but had jurisdiction over the com- 
mon form probate proceedings, and as 
decedent's brother did not contest the will 
within the two-year limitations period, 
the probate in common form was final and 



27 



Rule 4 



MISSISSIPPI COURT RULES 



binding. In re Estate of Kelly v. Cuevas, 
951 So. 2d 564 (Miss. Ct. App. 2005), 
affirmed in part and reversed in part by 
951 So. 2d 543, 2007 Miss. LEXIS 18 
(Miss. 2007). 

Denial of a motion to set aside a default 
judgment against an insurance company 
was reversed because the trial court 
lacked personal jurisdiction pursuant to 
Miss. R. Civ P. 4 over the insurance com- 
pany; because, in this default case, proper 
service of process was not shown in the 
record, the default judgment was void. 
Lexington Ins. Co. v. Buckley, 925 So. 2d 
859 (Miss. Ct. App. Sept. 6, 2005,), writ of 
certiorari denied by 927 So. 2d 750, 2006 
Miss. LEXIS 181 (Miss. 2006). 

Court properly dismissed a wife's med- 
ical malpractice action against a medical 
center because service was not made on 
the medical center until three days after 
the 120-day deadline imposed by Miss. R. 
Civ. P. 4(h). Waiting until the last day to 
serve process on the medical center did 
not constitute good cause. Powe v. Byrd, 
892 So. 2d 223 (Miss. 2004). 

Where one defendant manufacturer 
was served by mail under Miss. R. Civ. P. 
4(c)(5), but the process served was not 
addressed to any particular person as re- 
quired by Miss. R. Civ. P. 4(d)(4), and an 
employee who signed for the delivery was 
not authorized to receive process; and as 
to a second defendant manufacturer, the 
postal service erroneously allowed the 
properly addressed certified mail to be 
signed for by a mail clerk who was not 
authorized; and the third defendant man- 
ufacturer was timely and properly served, 
defendants moved for relief from entry of 
default and default judgment on the basis 
that they were not properly served with 
process. The court concluded that service 
of process was not effective as to either of 
the defendants; the entries of default and 
of the default judgment are void, having 
been entered without jurisdiction over 
those parties. Brown v. Bristol-Myers 
Squibb Co., — F. Supp. 2d — , 2002 U.S. 
Dist. LEXIS 27445 (S.D. Miss. Nov 30, 
2002). 

Parties agreed that under the trial 
court's method of computation, service 
was complete on third party defendant 
one on day 130, and on third party defen- 



dant two on day 131. However, the appel- 
late court found that although there was 
no good cause shown for the delay in 
service, the delay was relatively slight, 
and there was good cause for allowing the 
litigation to proceed; on the specific facts 
of the case, that was enough, and the trial 
court properly denied the third party de- 
fendants' motions to dismiss. Tunek v. 
Windham, 897 So. 2d 186 (Miss. Ct. App. 
2004), cert, denied, 896 So. 2d 373 (Miss. 
2005). 

Court erred in den3dng a transport com- 
pany and driver's motions to dismiss 
plaintiff's personal injury action because 
process was served on both defendants 
through certified mail, which constituted 
no service at all upon an in-state defen- 
dant pursuant to Miss. R. Civ. P. 4(c)(5). 
Triple 'C Transp., Inc. v. Dickens, 870 So. 
2d 1195 (Miss. 2004). 

Where defendant denied being served 
with process, there was no return of ser- 
vice in the record, and no entry in the 
docket book indicating that there ever was 
a return, a judgment finding him in con- 
tempt and ordering him to pay educa- 
tional expenses was void. Morrison v. 
Miss. Dep't of Human Servs., 863 So. 2d 
948 (Miss. 2004). 

Pro se plaintiffs must strictly comply 
with Miss. R. Civ. P. 4(h). Perry v. Andy, 
858 So. 2d 143 (Miss. 2003). 

Under Miss. R. Civ P 4(d)(4), an indi- 
vidual bringing a slip-and-fall action had 
not properly effected service on a motel 
management company by delivering a 
copy of the summons and complaint to a 
motel manager where the manager was 
not an employee or agent of the manage- 
ment company or of any other properly 
named defendant company. Lee v. Pineap- 
ple Mgmt. Servs., 241 F. Supp. 2d 690 
(S.D. Miss. 2002). 

Miss. R. Civ. P. 4(h) does not require 
that a motion for additional time for ser- 
vice of process be filed within 120 days of 
the filing of the complaint. Webster v. 
Webster, 834 So. 2d 26 (Miss. 2002). 

While an extension of time through the 
courts was not required under subsection 
(h), it was preferred; the 120-day rule had 
to be observed unless the party demon- 
strated that good cause existed to extend 
the time. Moore v Boyd, 799 So. 2d 133 
(Miss. Ct. App. 2001). 



28 



RULES OF CIVIL PROCEDURE 



Rule 4 



Where plaintiff made extensive efforts 
to locate and serve defendant who had 
moved from the area, he established good 
cause for his failure to complete service 
within 120 days of filing complaint. 
Fortenberry V. Memorial Hosp., 676 So. 2d 
252 (Miss. 1996). 

Parties who were not already subject to 
the court's jurisdiction were required to be 
served pursuant this rule. Leaf River For- 
est Prods., Inc. v. Deakle, 661 So. 2d 188 
(Miss. 1995). 

Since plaintiff had not properly served 
defendant with complaint, plaintiff's en- 
try of default was premature. Bilbo v. 
Thigpen, 647 So. 2d 678 (Miss. 1994). 

Deputy sheriff appeared to have prop- 
erly served process on physician in medi- 
cal practice action, where summons and 
complaint were left with physician's office 
manager, who, by custom and practice, 
was vested with apparent authority to 
accept service of process on behalf of phy- 
sician and other doctors in his office. Wil- 
hams V. Kilgore, 618 So. 2d 51 (Miss. 
1992). 

Valid service of process was not made on 
physician in medical practice action, 
where, even if service had been made 
upon his wife, there was no evidence that 
a copy of the summons and complaint had 
subsequently been mailed to him at his 
residence, in accordance with rule. Wil- 
hams V. Kilgore, 618 So. 2d 51 (Miss. 
1992). 

Service of process on divorce defendant 
while he was in Mississippi and attending 
court in another matter was proper, where 
there was no question but that he was 
wholly amenable to his wife's divorce ac- 
tion in Mississippi and thus he was not 
required to waive any right that he other- 
wise would have enjoyed. Chenier v. 
Chenier, 573 So. 2d 699 (Miss. 1990). 

Statute of limitations. 

Under Miss. R. Civ. P. 4(h), the trial 
court abused its discretion by denying 
school district's and bus driver's motion to 
set aside the order granting the extension 
of time because substantial evidence did 
not support a finding of good cause for the 
driver's failure to serve the school district 
and bus driver within the required 120- 
day period. Thus, the other driver was not 
entitled to an extension of time to effect 



service, the statute of limitations had ex- 
pired, and the complaint was subject to 
dismissal with prejudice. Copiah County 
Sch. Dist. V. Buckner, 61 So. 3d 162 (Miss. 
2011). 

Although- the filing of a personal injury 
lawsuit tolled the three-year statute of 
limitations under Miss. Code Ann. § 15- 
1-49 four daysL before its expiration, the 
limitations period resumed running at the 
end of the service of process period under 
Miss. R. Civ. P. 4(h) and, thus, dismissal 
with prejudice was proper where process 
was not served until six days after the 
expiration of the 120-day service period. 
Stutts V. Miller, 37 So. 3d 1 (Miss. 2010). 

While the trial court erred by finding 
that defendant was served properly, dis- 
missal was not warranted because plain- 
tiff had to be afforded the opportunity to 
apply for additional time to serve process 
and to demonstrate whether the circum- 
stances constituted good cause under 
Miss. R. Civ. P. 4(h) for failing to serve 
defendant. Bloodgood v. Leatherwood, 25 
So. 3d 1047 (Miss. 2010). 

Trial court properly granted a hospital's 
motion to dismiss a medical malpractice 
suit, finding no good cause for the failure 
of a patient's family to serve a summons 
upon the hospital during the 120-day time 
period, under Miss. R. Civ. P. 4(h), and 
finding that the two-year statute of limi- 
tations, under Miss. Code Ann. § 15-1- 
36(2), had expired. Lucas v. Baptist Mem. 
Hosp. - N. Miss., Inc., 997 So. 2d 226 
(Miss. Ct. App. 2008). 

Although the statute of limitations was 
three years for a legal malpractice action, 
a client's first complaint tolled the statute 
of limitations even though that complaint 
was not properly served, and a second 
complaint was subsequently filed. 
Parmley v. Pringle, 976 So. 2d 422 (Miss. 
Ct. App. 2007). 

In a personal injury case removed from 
state court, a company's motion to dismiss 
was granted because the company was not 
served within the 120-day period provided 
for by Miss. R. Civ. P. 4(h), and the worker 
failed to re-file his complaint within the 
three-year period provided for in Miss. 
Code. Ann. § 15-1-49(1). Riley v. Ga. Pac. 
Corp., — F. Supp. 2d — , 2006 U.S. Dist. 
LEXIS 1626 (N.D. Miss. Jan. 5, 2006). 



29 



Rule 4 



MISSISSIPPI COURT RULES 



When a passenger brought a suit 
against a driver in a matter arising out of 
a colhsion, but failed to serve the driver 
within the 120-day period, as required, 
the matter was properly dismissed with 
prejudice because the driver did not waive 
his defenses of insufficiency of process and 
insufficiency of service of process, and 
when the passenger failed to show good 
cause for not completing service within 
120 days, the statute of limitations ex- 
pired. Heard v. Remy, 937 So. 2d 939 
(Miss. 2006). 

Where: (1) an individual filed his per- 
sonal injury complaint against a car 
maker with two days remaining in the 
limitations period, (2) the limitations pe- 
riod was tolled during the 120 days pro- 
vided for by Miss. R. Civ. P. 4(h) for ser- 
vice, (3) service was not made on the car 
maker until 123 days had passed, and (4) 
the statute of limitations period for filing 
suit resumed after the 120 days had 
ended, the individual's personal injury 
claims against the car maker were dis- 
missed with prejudice because they were 
time-barred. Riley v. Ga. Pac. Corp., — F. 
Supp. 2d — , 2006 U.S. Dist. LEXIS 1625 
(N.D. Miss. Jan. 5, 2006), dismissed by 
2006 U.S. Dist. LEXIS 1626 (N.D. Miss. 
Jan. 5, 2006). 

Plaintiff's failure to effect timely service 
upon two manufacturers in his personal 
injury suit caused the applicable three- 
year statute of limitations to begin run- 
ning after the 120-day period in Miss. R. 
Civ. P. 4(h) for effecting service elapsed; 
because the three-year statute of limita- 
tions expired a few days after the 120-day 
time frame for effecting service expired 
and plaintiff did not refile his complaint 
prior to the expiration of the statute of 
limitations, plaintiff's claims were time- 
barred. Riley v. Ga. Pac. Corp., — F. Supp. 
2d — , 2006 U.S. Dist. LEXIS 1440 (N.D. 
Miss. Jan. 5, 2006), dismissed by 2006 
U.S. Dist. LEXIS 1623 (N.D. Miss. Jan. 5, 
2006). 

In November 1997, plaintiff brought 
suit for wrongful death, but the record 
reflected that she failed to properly serve 
process upon defendant within 120 days. 
Because process was not served within the 
120-day period as provided by Miss. R. 
Civ. P. 4(h), the running of the statute of 



limitations resumed; further, the statute 
of limitations ran in March, 2000, some 14 
months prior to defendant's motion to dis- 
miss and some 19 months prior to plain- 
tiff's filing of a second identical wrongful 
death action, and therefore, when plaintiff 
filed her second action, the three year 
statute of limitation set forth in Miss. 
Code Ann. § 15-1-49 had run. Owens v. 
Mai, 891 So. 2d 220 (Miss. 2005). 

Filing the complaint suspends the run- 
ning of the statute of limitations regard- 
less of whether service is made within the 
120-day period set forth in Rule 4(h). Ball 
V. Wal-Mart Stores, Inc., 34 F. Supp. 2d 
424 (S.D. Miss. 1998). 

Filing of complaint for medical malprac- 
tice, even without service of process, tolls 
statute of limitations governing medical 
malpractice actions for the 120 day period 
allowed in subdivision (h) of this rule. 
Fortenberry v. Memorial Hosp., 676 So. 2d 
252 (Miss. 1996). 

Filing of medical malpractice complaint 
without process being issued tolled appli- 
cable statute of limitations, where service 
of process was made within 120 days after 
filing of complaint. Erby v. Cox, 654 So. 2d 
503 (Miss. 1995). 

Waiver. 

In a case arising from an automobile 
accident in which a trial court granted 
defendant's motion to dismiss or, in the 
alternative, for summary judgment be- 
cause plaintiff had failed to properly serve 
her, plaintiff unsuccessfully argued that 
defendant waived her affirmative defense 
of insufficiency of process by actively par- 
ticipating in the litigation. During the 
course of the litigation: (1) defendant filed 
a motion to dismiss or, in the alternative, 
a motion for summary judgment; (2) she 
filed an answer to the complaint; and (3) 
she responded to plaintiff's request for 
production of documents; defendant's par- 
ticipation in litigation was minimal, and 
she had not waived her affirmative de- 
fense of insufficiency of process based on 
her minimal participation in litigation. 
Shaver v. Blackwell, 43 So. 3d 1155 (Miss. 
Ct. App. 2010), writ of certiorari denied by 
49 So. 3d 106, 2010 Miss. LEXIS 481 
(Miss. 2010). 

Contractors waived the issue of insuffi- 
ciency of service of process because they 



30 



RULES OF CIVIL PROCEDURE 



Rule 5 



did not contest the sufficiency of service of 
process; the contractors did not claim that 
service was improper in their motion to 
set aside the default judgment that was 
entered against them, and they expressly 
admitted that they were served either 
under the Mississippi Long-Arm Statute 
or personally by certified mail. Woodkrest 
Custom Homes Inc. v. Cooper, 24 So. 3d 
340 (Miss. Ct. App. 2009). 

In a medical malpractice suit, a hospital 
did not waive its affirmative defense of 
insufficient service of process by the fail- 
ure of the hospital to include the affirma- 
tive defense in a subsequent motion for a 
change or venue or by its active participa- 
tion in the litigation. Lucas v. Baptist 
Mem. Hosp. - N. Miss., Inc., 997 So. 2d 226 
(Miss. Ct. App. 2008). 

In a negligence case, the defense of lack 
of personal jurisdiction was waived under 
Miss. R. Civ. P. 12(h)(1) because an out-of- 
state resident made a general appearance 
when he sought relief from a default judg- 
ment without raising that objection; 
therefore, the case was improperly dis- 
missed for a failure timely serve process. 
Courtney v. McCluggage, 991 So. 2d 642 
(Miss. Ct. App. 2008). 

Custody award of the mother's and fa- 
ther's child to the father was appropriate, 
in part because the mother waived her 
jurisdictional arguments when she failed 
to timely seek resolution of the issue and 
when she participated in the hearing 
without first seeking an adjudication of 
her jurisdictional issue. Price v. McBeath, 
989 So. 2d 444 (Miss. Ct. App. 2008). 

In a son's negligence action against his 
father, the father was deemed to have 



waived his right to assert insufficiency of 
process due to the son's failure to serve 
process on the father until nine months 
after the expiration of the 120-day period 
in Miss. R. Civ. P. 4(h) where the father 
assertedin sufficient service as a defense 
in his answer but then proceeded to par- 
ticipate in discovery, engage in settlement 
talks, and notice the son's deposition over 
the next two years and did not raise the 
service of process issue again until the 
statute of limitations on the son's claim 
expired. Whitten v. Whitten, 956 So. 2d 
1093 (Miss. Ct. App. 2007). 

Eight-month period of inactivity, with 
regard to a defendant's assertion that he 
was not served within the 120-day period 
allowed under Miss. R. Civ. P. 4(h), pre- 
sumptively constitutes a waiver of that 
defense when coupled with the defen- 
dant's participation in the litigation. 
Whitten V. Whitten, 956 So. 2d 1093 (Miss. 
Ct. App. 2007). 

While an original motel owner was not 
properly served under Miss. R. Civ. P. 4(h), 
because it waited more than 12 months 
after an appearance was entered on its 
behalf to challenge service of process, the 
matter was waived and the owner's dis- 
missal from the action was improper. 
Schustz V. Buccaneer, Inc., 850 So. 2d 209 
(Miss. Ct. App. 2003). 

Where waiver of process and entry of 
appearance form were signed on same day 
divorce was filed, but dated the following 
day, and where there were other irregu- 
larities, the case was reversed and re- 
manded for further proceedings. Peterson 
V. Peterson, 648 So. 2d 54 (Miss. 1994). 



Rule 5. Service and filing of pleadings and other papers. 

(a) Service: When Required. Except as otherwise provided in these rules, 
every order required by its terms to be served, every pleading subsequent to 
the original complaint unless the court otherwise orders because of numerous 
defendants, every paper relating to discovery required to be served upon a 
party unless the court otherwise orders, every written motion other than one 
which may be heard ex parte, and every written notice, appearance, demand, 
offer of judgment, designation of record on appeal and similar paper shall be 
served upon each of the parties. No service need be made on parties in default 
for failure to appear except that pleadings asserting new or additional claims 
for relief against them shall be served upon them in the manner provided in 
Rule 4 for service of summons. In an action begun by seizure of property, in 



31 



Rule 5 MISSISSIPPI COURT RULES 

which no person need be or is named as defendant, any service required to be 
made prior to the fihng of an answer, claim, or appearance shall be made upon 
the person having custody or possession of the property at the time of its 
seizure. 

(b)(1) Service: How Made. Whenever under these rules service is required or 
permitted to be made upon a party who is represented by an attorney of record 
in the proceedings, the service shall be made upon such attorney unless service 
upon the party himself is ordered by the court. Service upon the attorney or 
upon a party shall be made by delivering a copy to him; or by transmitting it 
to him by electronic means; or by mailing it to him at his last known address, 
or if no address is known, by leaving it with the clerk of the court, or by 
transmitting it to the clerk by electronic means. Delivery of a copy within this 
rule means: handing it to the attorney or to the party; or leaving it at his office 
with his clerk or other person in charge thereof; or, if there is no on one in 
charge, leaving it in a conspicuous place therein; or, if the office is closed or the 
person to be served has no office, leaving it at his dwelling house or usual place 
of abode with some person of suitable age and discretion then residing therein. 
Service by electronic means is complete when the electronic equipment being 
used by the attorney or party being served acknowledges receipt of the 
material. If the equipment used by the attorney or party being served does not 
automatically acknowledge the transmission, service is not complete until the 
sending party obtains an acknowledgment from the recipient. Service by mail 
is complete upon mailing. 

(2) Electronic Court System Service: How Made. Where a court has, by local 
rule, adopted the Mississippi Electronic Court System, service which is 
required or permitted under these rules shall be made in conformity with the 
Mississippi Electronic Court System procedures. 

(c) Service: Numerous Defendants. In any action in which there are unusu- 
ally large numbers of defendants, the court, upon motion or of its own 
initiative, may order that service of the pleadings of the defendants and replies 
thereto need not be made as between the defendants, and that any cross-claim, 
counter-claim, or matter constituting an avoidance or affirmative defense 
contained therein shall be deemed to be denied or avoided by all other parties 
and that the filing of any such pleading and service upon the plaintiff 
constitutes due notice of it to the parties. A copy of every such order shall be 
served upon the parties in such manner and form as the court directs. 

(d) Filing. All papers after the complaint required to be served upon a party 
shall be filed with the court either before service or within a reasonable time 
thereafter but, unless ordered by the court, discovery papers need not be filed 
until used with respect to any proceeding. Proof of service of any paper shall be 
upon certificate of the person executing same. 

(e)(1) Filing with the Court Defined. The filing of pleadings and other papers 
with the court as required by these rules shall be made by filing them with the 
clerk of the court, except that the judge may permit the papers to be filed with 
him, in which event he shall note thereon the filing date and forthwith 
transmit them to the office of the clerk. 

32 



RULES OF CIVIL PROCEDURE 



Rule 5 



(2) Electronic Filing with Court Defined. A court may, by local rule, allow 
pleadings and other papers to be filed, signed, or verified by electronic means 
in conformity with the Mississippi Electronic Court System procedures. 
Pleadings and other papers filed electronically in compliance with the proce- 
dures are written papers for purposes of these rules. (Amended effective March 
1, 1989; Amended effective January 8, 2009, for the purpose of establishing a 
pilot program for Mississippi Electronic Court System.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective March 1, 1989, Rule 5(b) and 
Rule 5(e) were amended by authorizing 
the service and filing of pleadings and 



documents by electronic means, 536-538 
So. 2d XXI (West Miss. Gas. 1989). 



COMMENT 



I 



The purpose of Rule 5 is to provide both 
an expedient method of exchanging writ- 
ten communications between parties and 
an efficient system of filing papers with 
the clerk. This rule presupposes that the 
court has already gained jurisdiction over 
the parties. A "pleading subsequent to the 
original complaint" which asserts a claim 
for relief against a person over whom the 
court has not at the time acquired juris- 
diction must be served upon such person 
not a party along with a copy of a sum- 
mons in the same manner as the copy of 
the summons and complaint is required to 
be served upon the original defendants. 
See Miss. Code Ann. § 11-5-37 (1972) (an- 
swer may be made a cross-bill). However, 
where a plaintiff has settled his case, the 
service on him of a notice and motion to 
intervene is ineffectual to bring him back 
into court. This is consistent with Missis- 
sippi practice, although past procedure 
did not recognize intervention. See Hy- 
man v. Cameron, 46 Miss. 725 (1872). 

A motion which may be heard ex parte is 
not required to be served, but should be 
filed; see also M.R.C.P. 81(b). The enu- 
meration of papers in Rule 5(a) which are 
required to be served is not exhaustive; 
also included are affidavits in support of 
or in opposition to a motion, Rule 6(d), and 
a motion for substitution of parties. Rule 
25. 

Discovery papers, referred to in Rule 
5(a), embrace interrogatories. Rule 33, re- 
quests for admission. Rule 36, and re- 
quests for production, Rule 34. Responses 



served under the provisions of any of 
these rules must also be served on all 
parties. 

The Administrative Office of Courts 
(AOC) is authorized to establish proce- 
dures for a comprehensive electronic case 
management and electronic filing system 
known as the Mississippi Electronic Court 
System (MEC). Please refer to the Admin- 
istrative Procedures for Mississippi Elec- 
tronic Court System on the Supreme 
Court's website at www. mssc. state. ms. us. 
While the use of the MEC is optional for 
the chancery, circuit, and county courts, 
the procedures must be followed where a 
court has adopted and implemented the 
MEC by local rule. Therefore, to the ex- 
tent the MEC procedures address service 
and filing of pleadings and other papers, 
the procedures should be followed to sat- 
isfy Rule 5(e) and Rule 5(b). For purposes 
of Rule 5(e), the MEC procedures provide 
reasonable exceptions to the requirement 
of electronic filing 

A secondary purpose of Rule 5(c) is to 
permit the court to alleviate some of the 
difficulties in actions where there are un- 
usually large numbers of defendants. Rule 
5(c) is the only instance in which the 
provisions of Rule 7(a) (pleadings allowed) 
are permitted to be relaxed. This relaxa- 
tion extends only to replies to counter- 
claims and answers to cross-claims; other 
pleadings and all motions must still be 
served in the usual manner. 

Rule 5(d) recognizes both the expense of 
making additional transcripts of record- 



33 



Rule 5 



MISSISSIPPI COURT RULES 



ings and duplicating exhibits or attach- 
ments to discovery papers, and the fact 
that the routine fiHng of such items can 
engulf the space in a clerk's office. Accord- 
ingly, papers produced in the course of 
discovery need not be filed with the court 
unless they are relevant to some proceed- 
ing or the court so directs, nor must all 
discovery papers be filed if only some of 
them are required for the disposition of 
some motion or proceeding. M.R.C.P. 5(d) 
differs from Federal Rule 5(d) in the pre- 
ceding respect, but accords with the rec- 
ommendations of the American Bar Asso- 
ciation for correcting abuses in the 
discovery procedures. See Special Com- 
mittee for the Study of Discovery Abuse, 
Section of Litigation, A.B.A., Report, at 1, 
2 (1977). 

Of further significance in Rule 5(d) is 
that, although service must be made 
within the times prescribed, filing is per- 
mitted to be made within a reasonable 
time thereafter. See Blank v. Bitker, 135 
F.2d 962 (7th Cir. 1943). Instances requir- 
ing the pleading to be filed before it is 
served include Rule 3 (complaint) and any 



other pleading stating a claim for relief 
which it is necessary to serve with a 
summons. Pursuant to Rule 5(c) (numer- 
ous defendants) the filing of a pleading, 
coupled with service on the plaintiff, is 
notice to the parties. Rule 65(b) requires 
temporary restraining orders to be filed 
forthwith in the clerk's office. 

To obtain immediate court action under 
Rule 5(e), a party may file his papers with 
the judge, if the latter permits, and obtain 
such order as the judge deems proper. 
Rule 5(e) should be read in conjunction 
with Rules 77(a) (courts always open), 
77(b) (trials and hearings; orders in cham- 
bers), and 77(c) (clerk's office and orders 
by clerk). 

Rule 5(b) has no application to service of 
summons; that subject is completely cov- 
ered by Rule 4. 

For general discussions of the federal 
rule analogous to M.R.C.P. 5, see 1 Wright 
& Miller, Federal Practice and Procedure, 
Civil §§ 71-82 (1969), and 2 Moore's Fed- 
eral Practice ff 5.01-5.11 (1975). (Com- 
ment amended December 11, 2008) 



JUDICIAL DECISIONS 



Construction. 
Applicability. 
Filing with court. 
Proof of Mailing. 
Service upon attorney. 
Service upon party 

Construction. 

Bill of peace was a pleading subsequent 
to initial complaint because it was derived 
from and part of original litigation; service 
on each individual plaintiff (defendants in 
the bill of peace) as in an independent, 
unrelated action was therefore not neces- 
sary, and service on plaintiffs' attorneys of 
record was sufficient. Leaf River Forest 
Prods., Inc. v. Deakle, 661 So. 2d 188 
(Miss. 1995). 

Applicability. 

Although this rule is generally utilized 
after suit has been filed, mechanics of this 
rule could properly be used where notice 
was required by statute as a preliminary 
step to filing a lawsuit. Brocato v. Missis- 
sippi Pubhshers Corp., 503 So. 2d 241 
(Miss. 1987). 



Party who is granted permission to in- 
tervene pursuant to M.R.C.P. Rule 
24(b)(2) is not required to issue a sum- 
mons and complaint pursuant to Rule 4; 
rather, service pursuant to Rule 5, of mo- 
tion to intervene accompanied by com- 
plaint, is sufficient service. Breland v. 
Smith-Johnson, Inc., 501 So. 2d 389 (Miss. 
1987). 

Filing with court. 

Where the process issued to defendants 
was deficient and not in substantial com- 
pliance with Miss. R. Civ. P. 4(b), a pro se 
response by one defendant might have 
constituted an appearance under Miss. R. 
Civ. P. 55, but was not a valid answer 
because it did not comport with the filing 
requirement of Miss. R. Civ. P. 5(d). Flet- 
cher V. Limeco Corp., 996 So. 2d 773 (Miss. 
2008), remanded by 32 So. 3d 429, 2010 
Miss. LEXIS 182 (Miss. 2010). 

Where an attorney appealed the denial 
of unemployment benefits, it was error to 
find that the attorney's appeal was un- 
timely based on the failure to include a 



34 



RULES OF CIVIL PROCEDURE 



Rule 5 



civil cover sheet, because the attorney 
demonstrated good cause for an extension 
of the fihng deadUne since the cover sheet 
requirement did not bar the otherwise 
timely notice of appeal. Cummings v. 
Miss. Dep't of Empl. Sec, 980 So. 2d 340 
(Miss. Ct. App. 2008). 

Under Miss. R. Civ. P. 5(d), only proof of 
service of discovery responses, and not the 
responses themselves, need be filed with 
the court, and a plaintiff's motion for 
judgment based on the defendant's failure 
to file discovery responses with the court 
was thus clearly frivolous and justified 
sanctions under Miss. R. Civ. P. 11(b). 
Mcintosh V. Victoria Corp., 877 So. 2d 519 
(Miss. Ct. App. 2004), cert, denied, 878 So. 
2d 67 (Miss. 2004). 

A pro se prisoner's motion for post- 
conviction relief is delivered for filing un- 
der the Uniform Post-Conviction Collat- 
eral Relief Act and the Mississippi Rules 
of Civil Procedure when the prisoner de- 
livers the papers to prison authorities for 
mailing; further, prison authorities may 
initiate such procedures as are necessary 
to document reliably the date of such 
delivery, by means of a prison mail log of 
legal mail or other expeditious means, and 
henceforth, an inmate's certificate of ser- 
vice will not suffice as proof. Sykes v. 
State, 757 So. 2d 997 (Miss. 2000). 

Petition was deemed "filed" when deliv- 
ered to clerk of youth court, as there was 
no confiict between subdivision (e) of this 
rule and any provision of the Youth Court 
Act. Cortesi v. Washington County Dep't of 
Human Servs., 566 So. 2d 691 (Miss. 
1990). 

Proof of Mailing. 

Plaintiff's testimony regarding his 
usual practice and procedure for mailing 
letters was insufficient to establish that 
notice was served in compliance with 
Miss. Code Ann. § 15-1-36(15) and Miss. 
R. Civ. P. 5, in the absence of evidence 
showing that the required notice letter 
had actually been stamped and placed in 
the mail. Brewer v. Wiltcher, 22 So. 3d 
1188 (Miss. 2009). 

Service upon attorney. 

In a partition action, appellant had no- 
tice of a public sale of the property be- 
cause service of a copy of the order on 



appellant's attorney regarding the public 
sale of the property was sufficient for 
actual notice to appellant under Miss. R. 
Civ. P. 5(b)(1); the attorney was obligated 
to act in the capacity of counsel for appel- 
lant until allowed to withdraw by the 
chancellor. Polk v. Jones, 20 So. 3d 710 
(Miss. Ct. App. 2009). 

Plaintiff's faUure to serve defendant's 
attorney with a copy of a motion to extend 
the time to serve process under Miss. R. 
Civ. P. 6(b)(1) was not a dereliction suffi- 
cient to justify setting aside the extension 
because such a motion could be heard ex 
parte under Miss. R. Civ. P. 5(a). Johnson 
V Thomas, 982 So. 2d 423 (Miss. Ct. App. 
2007), reversed by 982 So. 2d 405, 2008 
Miss. LEXIS 257 (Miss. 2008). 

Letters did show that the father's attor- 
ney failed to serve notice of the subpoena 
immediately under Miss. R. Civ. P. 45, but 
the father's attorney's failure to follow 
correct procedure did not rise to the level 
of abuse of process. The trial court prop- 
erly granted summary judgment in favor 
of the father and his attorney as to the 
abuse of process claim; moreover, the 
mother's argument that the father was 
required to hand deliver the notice to her 
attorney under Miss. R. Civ. P. 5(b) was 
without merit, as service was allowed by 
mail under the plain language of Miss. R. 
Civ. P 5(b). Ayles v. Allen, 907 So. 2d 300 
(Miss. 2005). 

Where neither a motion requesting his 
formal withdrawal as counsel nor a court 
order permitting withdrawal were present 
in the record, the circuit court and oppos- 
ing counsel were obligated to serve all 
motions and notices upon the plaintiff's 
attorney of record, and having failed to so 
do, a default judgment entered against 
the plaintiff was void. McClain v. White, 
738 So. 2d 306 (Miss. Ct. App. 1999). 

Notice of filing of statement of evidence 
was not properly served on wife in divorce 
proceeding, where attorney on whom it 
was served had represented wife in Loui- 
siana, but not Mississippi, and attorney 
had never appeared as an attorney of 
record for wife in either appellate court or 
the court below. Barber v. Barber, 608 So. 
2d 1338 (Miss. 1992). 

Court had continuing jurisdiction over 
parties to divorce, and therefore hus- 



35 



Rule 6 MISSISSIPPI COURT RULES 

band's subsequent complaint regarding dant's alleged failure to answer the corn- 
wife's failure to provide child visitation plaint within 30 days; defendant had 
only required giving of notice rather than placed the answer in the mail in a timely 
actual service of process, and maihng of fashion and plaintiff could not refuse to 
complaint to wife's attorney of record was accept it and then claim defendant had 
sufficient under this rule. Cooleyv.Cooley, not answered. Slaydon v. Hansford, 830 
574 So. 2d 694 (Miss. 1991). So. 2d 686 (Miss. Ct. App. 2002). 
Service upon party. '^^^ plaintiff complied with the notice 

Widow's seven-year delay in taking any requirements of subsection (b) when it 

action in her suit against her deceased mailed a notice of hearing upon its motion 

husband's employer other than letters to for default judgment to the defendant, 

the clerk that were not served on the rather than his attorney where it knew 

employer as required by Miss. R. Civ. P. 5, that the defendant's first counsel of record 

and an absence of good cause shown for had withdrawn but could not have known 

the delay, required dismissal of her action that the defendant had retained another 

pursuant to Miss. R. Civ. R 41(d). 111. attorney to represent him until after it 

Cent. R.R. Co. v. Moore, 994 So. 2d 723 had mailed the notice of the hearing di- 

(Miss. 2008). rectly to the defendant. Duckworth v. 

Trial court did not err in refusing to Strite, 748 So. 2d 794 (Miss. Ct. App. 

grant a default judgment based on defen- 1999). 

RESEARCH REFERENCES 

ALR. Service of Process Via Computer 
or Fax. 30 A.L.R.6th 413. 

Rule 6. Time. 

(a) Computation. In computing any period of time prescribed or allowed by 
these rules, by order of court, or by any applicable statute, the day of the act, 
event, or default from v^hich the designated period of time begins to run shall 
not be included. The last day of the period so computed shall be included, 
unless it is a Saturday, a Sunday, or a legal holiday, as defined by statute, or 
any other day v^hen the courthouse or the clerk's office is in fact closed, 
w^hether v^ith or v^ithout legal authority, in which event the period runs until 
the end of the next day which is not a Saturday, a Sunday, a legal holiday, or 
any other day when the courthouse or the clerk's office is closed. When the 
period of time prescribed or allowed is less than seven days, intermediate 
Saturdays, Sundays, and legal holidays shall be excluded in the computation. 
In the event any legal holiday falls on a Sunday, the next following day shall 
be a legal holiday. 

(b) Enlargement. When by these rules or by notice given thereunder or by 
order of court an act is required or allowed to be done at or within a specified 
time, the court for cause shown may at any time in its discretion (1) with or 
without motion or notice order the period enlarged if request therefore is made 
before the expiration of the period originally prescribed or as extended by a 
previous order, or (2) upon motion made after the expiration of the specified 
period permit the act to be done where failure to act was the result of excusable 
neglect; but it may not extend the time for taking any action under Rules 50(b), 
52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the 
conditions therein stated. 

36 



RULES OF CIVIL PROCEDURE 



Rule 6 



(c) Unaffected by expiration of term. The period of time provided for the 
doing of any act or the taking of any proceeding is not affected or Umited by the 
continued existence or expiration of a term of court. The existence or expiration 
of a term of court in no way affects the power of a court to do any act or take 
any proceeding in a civil action consistent with these rules. 

(d) Motions. A written motion, other than one which may be heard ex parte, 
and notice of the hearing thereof shall be served not later than five days before 
the time fixed for the hearing, unless a different period is fixed by these rules 
or by order of the court. Such an order may for cause shown be made on ex 
parte application. When a motion is supported by affidavit, the affidavit shall 
be served with the motion; and, except as otherwise provided in Rule 59(c), 
opposing affidavits may be served not later than one day before the hearing, 
unless the court permits them to be served at some other time. 

(e) Additional time after service by mail. Whenever a party has the right or 
is required to do some act or take some proceedings within a prescribed period 
after the service of a notice or other paper upon him and the notice or paper is 
served upon him by mail, three days shall be added to the prescribed period. 
This subdivision does not apply to responses to service of summons under Rule 
4. (Amended effective March 1, 1989; amended effective June 24, 1992; 
amended effective July 1, 2008.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective June 24, 1992, Rule 6(a) was 
amended to provide that the legal holi- 
days which cause a period of time to be 
enlarged are those defined by statute. 
598-602 So. 2d XXII-XXIII (West Miss. 
Gas. 1992). 



Effective March 1, 1989, Rule 6(a) was 
amended to abrogate the inclusion of time 
periods established by local court rules. 
536-538 So. 2d XXI (West Miss. Gas. 
1989). 



COMMENT 



The purpose of Rule 6 is to provide 
reasonably flexible, general guidelines for 
the measurement of time periods under 
these rules. Rule 6(a) implements a new 
method for computing time by excluding 
Saturday or legal holidays from being the 
last day of a time period, and excluding 
intermediate Saturdays, Sundays, and le- 
gal holidays from the computation when 
the total time period is less than seven 
days. 

It is not uncommon for clerks' offices 
and courthouses to be closed occasionally 
during what are normal working periods, 
whether by local custom or for a special 
purpose, such as attendance at a funeral. 
Rule 6(a) was drafted to obviate any harsh 
result that may otherwise ensue when an 
attorney, faced with an important filing 



deadline, discovers that the courthouse or 
the clerk's office is unexpectedly closed. 

Under Rule 6(b), the court is given wide 
discretion to enlarge the various time pe- 
riods both before and after the actual 
termination of the allotted time, certain 
enumerated cases being expected. Accord, 
e. g., Rogers v. Rogers, 290 So.2d 631 
(Miss.), cert, denied 419 U.S. 837 [95 S. Gt. 
65, 42 L.Ed.2d 64] (1974); Grand Lodge 
Colored K.R v. Yelvington, 111 Miss. 352, 
71 So. 576 (1916). 

Importantly, such enlargement is to be 
made only for cause shown. If the applica- 
tion for additional time is made before the 
period expires, the request may be made 
ex parte; if it is made after the expiration 
of the period, notice of the motion must be 
given to other parties and the only cause 



37 



Rule 6 



MISSISSIPPI COURT RULES 



for which extra time can be allowed is 
"excusable neglect." Excusable neglect is 
discussed and illustrated in 4 Wright & 
Miller, Federal Practice and Procedure, 
Civil § 1165 (1969). 

Rule 6(c) does not abolish court terms. 
This rule merely provides greater flexibil- 
ity to the courts in attending the myriad 
functions they must perform, many of 
which were heretofore possible only dur- 
ing term time. The rule is also consistent 
with the provisions elsewhere herein that 
prescribe a specific number of days for 
taking certain actions rather than linking 
time expirations to the opening day, or 



final day, or any other day of a term of 
court; e. g., M.R.C.P. 6(d) (motions and 
notices of hearings thereon to be served 
not less than five days before time fixed 
for hearing), and M.R.C.P. 12(a) (defen- 
dant to answer within thirty days after 
service of summons and complaint). 

Rule 6(d) is self-explanatory in requir- 
ing a minimum of five days notice for 
hearing motions. 

Rule 6(e) is patterned after Miss. Code 
Ann. § 13-3-83 (1972) and adds nothing 
new to Mississippi practice. 

[Amended effective August 11, 2005.] 



JUDICIAL DECISIONS 



Construction. 

Affidavits. 

Computations. 

Enlargement of time. 

Excusable neglect. 

Motions. 

Notice. 

Service by mail. 

Construction. 

Because the Mississippi Employment 
Security Commission (MESC) was not a 
circuit, chancery or county court, the Mis- 
sissippi Rules of Civil Procedure, particu- 
larly Miss. R. Civ. P. 6(e), were not appli- 
cable to its administrative hearings or 
appeals. Miss. Empl. Sec. Comm'n v. Par- 
ker, 903 So. 2d 42 (Miss. 2005). 

M.R.C.P. 6(b) is a general rule and is 
therefore subject to specific provisions of 
M.R.C.P. 56(b), and therefore trial judge 
correctly granted defendant leave to file 
dispositive motion because, under 
M.R.C.P. 56(b), a motion for summary 
judgment is proper at any time. Diogenes 
Editions, Inc. v. State ex rel. Board of 
Trustees of Insts. of Higher Learning, 700 
So. 2d 316 (Miss. 1997). 

Ten day time hmit set forth in M.R.C.P. 
Rule 59(b) is jurisdictional and manda- 
tory, and Rule 6(b) gives trial judge no 
discretion to enlarge this time period. 
Telford v. Aloway, 530 So. 2d 179 (Miss. 
1988). 

Affidavits. 

Affidavit submitted more than two 
months after summary judgment hearing 



was late and was not allowed under either 
M.R.C.P Rule 6(d) or Rule 56(c); more- 
over. Rule 56(e) did not allow a supple- 
mental affidavit to be submitted after 
time set out in Rule 56(c) or Rule 6(d). 
Jones V. James Reeves Contractors, 701 
So. 2d 774 (Miss. 1997). 

Computations. 

Under Miss. R. Civ. P 4(h), the trial 
court abused its discretion by denying 
school district's and bus driver's motion to 
set aside the order granting the extension 
of time because substantial evidence did 
not support a finding of good cause for the 
driver's failure to serve the school district 
and bus driver within the required 120- 
day period. Appl3dng the rules for compu- 
tation of time under Miss. R. Civ. P. 6(a), 
the limitations period expired on Novem- 
ber 10, 2008. Copiah County Sch. Dist. v. 
Buckner, 61 So. 3d 162 (Miss. 2011). 

Architect sought to appeal a decision 
from the Mississippi State Board of Archi- 
tecture that found that the architect had 
unlawfully engaged in the practice of ar- 
chitecture in Mississippi; the chancery 
court improperly dismissed the appeal be- 
cause the time for appeal expired on a 
Saturday, and therefore when the notice 
and bond were filed the following Monday, 
the appeal was timely. Broady v. Miss. 
State Bd. of Architecture, 936 So. 2d 441 
(Miss. Ct. App. 2006). 

Where the statute of limitations appli- 
cable to plaintiff's personal injury claims 
would have expired on a Sunday, pursu- 
ant to Miss. R. Civ. P. 6(a), the limitations 



38 



RULES OF CIVIL PROCEDURE 



Rule 6 



period expired the following Monday. Ri- 
ley V. Ga. Pac. Corp., — F. Supp. 2d — , 
2006 U.S. Dist. LEXIS 1440 (N.D. Miss. 
Jan. 5, 2006), dismissed by 2006 U.S. Dist. 
LEXIS 1623 (N.D. Miss. Jan. 5, 2006). 

Pursuant to Miss. R. Civ. P. 6(a) and 
6(e), the claimant's time to appeal her case 
to the Mississippi Employment Security 
Commission Board of Review began on 
July 2, 2002, the day after the appeals 
referee mailed her decision to the claim- 
ant, and ended July 19, 2002, which re- 
flected the addition of an additional three 
days for the claimant to respond, as re- 
quired by Rule 6(e); therefore, the claim- 
ant's appeal was filed timely with the 
Board of Review. Miss. Empl. Sec. 
Comm'n v. Parker, 905 So. 2d 613 (Miss. 
Ct. App. 2004). 

Hearing on defendant's motion to com- 
pel discovery was not properly noticed, 
due to improper computation of time un- 
der this rule. Cunningham v. Mitchell, 549 
So. 2d 955 (Miss. 1989). 

Enlargement of time. 

In a divorce case, a former husband's 
appeal was time-barred because it was not 
perfected within 10 days of a final judg- 
ment entered in January 2007; the hus- 
band's post-trial motions were untimely 
under Miss. R. Civ. P. 52 and Miss. R. Civ. 
P. 59, and a chancellor did not have the 
authority to extend the time for such. The 
January 2007 judgment was final because 
it attended to all of the issues before the 
chancellor, including the support of two 
minor children, the equitable distribution 
of marital assets and liabilities, whether 
to award a former wife alimony, and 
whether to award the former wife attor- 
ney's fees. Anderson v. Anderson, 8 So. 3d 
264 (Miss. Ct. App. 2009). 

In a divorce case, a former husband's 
request for findings of fact was time- 
barred because it was filed more than 10 
days after entry of a final judgment, pur- 
suant to Miss. R. Civ. P. 52(b); the fact that 
a chancellor granted the request did not 
make the motion timely since the chancel- 
lor lacked authority to extend the time 
limitation. The chancellor's decision to 
grant the request and make additional 
findings was only harmless error. Ander- 
son V. Anderson, 8 So. 3d 264 (Miss. Ct. 
App. 2009). 



Once a party has received a first exten- 
sion of time under Miss. R. Civ. P. 4(h) in 
which to serve process, a second or subse- 
quent extension of time to effectuate ser- 
vice of process may be granted by a trial 
court only upon a showing of good cause; 
in other words, once the initial 120-day 
period after filing the complaint has 
elapsed, good cause is required to avoid 
dismissal. While Miss. R. Civ. P. 6(b)(1) 
provides for an enlargement of time for 
cause shown, when reading the two Rules 
together, it is apparent that Miss. R. Civ. 
P. 4(h) requires good cause after the expi- 
ration of 120 days. Johnson v. Thomas, 
982 So. 2d 405 (Miss. 2008). 

It was arbitrary and capricious for a 
trial court to void an order granting plain- 
tiff's motion under Miss. R. Civ. P. 6(b)(1) 
to extend the time to serve process after 
the court learned of defendant's previous 
motion to dismiss where the court said 
that the motion to extend had been 
granted without having "all the informa- 
tion" before the court, but there was noth- 
ing in the motion to dismiss that would 
have provided the court with any addi- 
tional information, other than the fact 
that the motion existed. Johnson v. 
Thomas, 982 So. 2d 423 (Miss. Ct. App. 
2007), reversed by 982 So. 2d 405, 2008 
Miss. LEXIS 257 (Miss. 2008). 

In a son's negligence action against his 
father, the son failed to show good cause 
for why process was not served on the 
father until nine months after the expira- 
tion of the 120-day period in Miss. R. Civ. 
P. 4(h) where: (1) the events pertaining to 
the father's attempts to evade service of 
process arose after the 120-day period for 
serving process; (2) the son only at- 
tempted to serve process one time during 
the 120-day period; and (3) the son failed 
to show that he exercised due diligence by 
moving for additional time to effect ser- 
vice prior to the expiration of the 120-day 
period. Whitten v. Whitten, 956 So. 2d 
1093 (Miss. Ct. App. 2007). 

Motion for extension of time filed after 
expiration of initial time under Miss. R. 
Civ. P. 6(b)(2) was properly denied, even 
though the trial court did not at first 
address good cause, as required by Miss. 
R. Civ. P. 4(h); the trial court cured its own 
error by finding good cause had not been 



39 



Rule 6 



MISSISSIPPI COURT RULES 



shown and the statute of Hmitations had 
expired. Heard v. Remy, 937 So. 2d 939 
(Miss. 2006). 

Trial court did not abuse its discretion 
in denjdng a motorist's motion to dismiss 
another driver's complaint in a personal 
injury matter arising out of a four-car 
accident, because the other driver had 
made diligent attempts to complete ser- 
vice of process on the motorist, and she 
demonstrated good cause why extensions 
of time to complete service should be 
granted. Bennett v. McCaffrey, 937 So. 2d 
11 (Miss. 2006). 

Application under Miss. R. Civ. P. 
6(b)(1) to enlarge the time for service of 
process was granted in the absence of bad 
faith or prejudice to the adverse party. 
The plaintiff did not act in bad faith in 
failing to issue and serve summons; her 
excuse was that she was proceeding pro 
se. Ignorance of the court rules did not 
constitute bad faith and the defendant 
had shown absolutely no prejudice as a 
result of the delay. Cross Creek Prods, v. 
Scafidi, 911 So. 2d 958 (Miss. 2005). 

Plaintiff's filing of complaint by mail did 
not extend by three days the statute of 
limitations on actions for assault and bat- 
tery and intentional infliction of emotional 
distress; dismissal of action on grounds of 
limitation was not error when the com- 
plaint was not received by the trial court 
clerk until after the statute of limitations 
had run. Slaydon v. Hansford, 830 So. 2d 
686 (Miss. Ct. App. 2002). 

Subsection (b) of this rule does not au- 
thorize a trial court to enlarge the 30-day 
period provided by § 41-29-176 for the 
filing of a petition to contest the forfeiture 
of property. Craigo v. North Mississippi 
Narcotics Unit, 762 So. 2d 349 (Miss. Ct. 
App. 2000). 

Time limit for serving a M.R.C.P. Rule 
59 motion for reconsideration is 10 days 
after judgment, and that period may not 
be enlarged except by request made 
within time period provided and such re- 
quest being granted by the court. Wright 
V. White, 693 So. 2d 898 (Miss. 1997). 

Excusable neglect. 

Where affidavits opposing a summary 
judgment motion were untimely, a trial 
court did not abuse its discretion by fail- 
ing to grant a continuance because the 



proponents had almost two years after 
their complaint was filed to obtain expert 
testimony, and their failure to do so was 
inexcusable neglect. Maxwell v. Baptist 
Mem. Hospital-Desoto, Inc., 15 So. 3d 427 
(Miss. Ct. App. 2008). 

Trial court did not abuse its discretion 
in denying a written motion for contin- 
uance of a hearing on a wife's petition to 
increase alimony and a proceeding to hear 
the petition on the wife's evidence alone 
where the husband's attorney had not 
filed the motion until three days before 
the trial date even though the attorney 
had been aware of a schedule conflict for 
two months, neither the attorney nor the 
husband appeared in the trial court on the 
date of the hearing, the conflicting trial 
had been continued by opposing counsel 
and the husband's attorney merely re- 
turned to his office without contacting the 
trial court. Profilet v. Profllet, 826 So. 2d 
91 (Miss. 2002). 

Attorney's failure to monitor the status 
of the claimant's personal injury lawsuit 
against a casino was not good cause for 
the attorney's failure to effect service 
within 120 days; dismissal with prejudice 
was appropriate because the statute of 
limitations had run. In re Holtzman, 823 
So. 2d 1180 (Miss. 2002). 

Chancery court did not err in failing to 
grant a continuance requested by a former 
husband of a hearing on the former wife's 
petition to increase alimony; the motion 
for a continuance was filed three working 
days prior to the hearing date, and the 
husband failed to show excusable neglect. 
In re Profilet, — So. 2d — , 2001 Miss. App. 
LEXIS 270 (Miss. Ct. App. July 17, 2001), 
affirmed in part by, vacated by, remanded 
in part by 826 So. 2d 91, 2002 Miss. 
LEXIS 281 (Miss. 2002). 

A motion for additional time to serve the 
defendant which cited "inadvertence and 
excusable neglect" as the basis for the 
failure to timely serve the defendant was 
sufficient to cover good cause under the 
notice pleading standard. Crumpton v. 
Hegwood, 740 So. 2d 292 (Miss. 1999). 

Motions. 

Trial court erred in sua sponte entering 
a default judgment against a city under 
Miss. R. Civ. P. 55 in a suit brought under 
the Mississippi Tort Claims Act, specifi- 



40 



RULES OF CIVIL PROCEDURE 



Rule 7 



cally Miss. Code Ann. § ll-46-9(l)(c); al- 
though the city did not timely answer 
plaintiff's amended complaint pursuant to 
Miss. R. Civ. P. 15(a), the parties contin- 
ued to engage in discovery for over four 
years and plaintiff had no intention of 
seeking of a default judgment. City of 
Jackson v. Presley, 942 So. 2d 777 (Miss. 
2006). 

The trial court committed no error in 
denjdng a motion for a continuance where 
the motion was not made until only three 
working days prior to trial, the movant 
showed no execusable neglect, and he had 
almost two months notice of the trial 
setting. Profilet v. Profilet (In re Marriage 
of Profilet), — So. 2d — , 2001 Miss. App. 
LEXIS 48 (Miss. Ct. App. Feb. 6, 2001). 

The movant failed to comply with the 
notice provisions as supplied by subsec- 
tion (d) of this rule where the notice of 
motion and the motion to dismiss were 
served by mail on August 15, filed August 
17, and delivered unannounced to the 
opposing party's attorney's office at 5:00 
p.m. on August 17, when the hearing was 
scheduled for 9:00 a.m. on August 19. L.W. 
V. C.W.B., 762 So. 2d 323 (Miss. 2000). 

Trial court erred in granting plaintiff''s 
motion for voluntary dismissal, and dis- 
missing her complaint without prejudice, 
without giving defendant reasonable ad- 
vance notice and an opportunity to be 
heard on the motion. Bolls v. Harris, 528 
So. 2d 1128 (Miss. 1988). 

Notice. 

Plaintiff's failure to serve defendant's 
attorney with a copy of a motion to extend 
the time to serve process under Miss. R. 
Civ. P. 6(b)(1) was not a dereliction suffi- 
cient to justify setting aside the extension 
because such a motion could be heard ex 
parte under Miss. R. Civ. P. 5(a). Johnson 
V. Thomas, 982 So. 2d 423 (Miss. Ct. App. 
2007), reversed by 982 So. 2d 405, 2008 
Miss. LEXIS 257 (Miss. 2008). 



Siblings did not submit their objections 
to the special commissioners' report in the 
form of a motion and did not notice a 
hearing, they simply objected to the spe- 
cial commissioners' recommendations and 
suggested alternative partition methods 
commensurate with their position; their 
document failed to include a written no- 
tice of a hearing^ and did not even include 
are quest for hearing; nothing in their 
document placed the chancellor on notice 
that the siblings desired a hearing on 
their objections. Miles v. Miles, 949 So. 2d 
774 (Miss. Ct. App. 2006), writ of certio- 
rari denied by 949 So. 2d 37, 2007 Miss. 
LEXIS 155 (Miss. 2007). 

Failure of plaintiff to serve motorist did 
not constitute receipt by the insurance 
company of "other paper" and did not 
trigger the 30-day removal period, but 
service of discovery requests was "other 
paper" from which the insurance company 
first learned that the case was removable; 
therefore, the insurance company timely 
filed the Notice of Removal, since it was 
within 30 days from when they could first 
ascertain the case was removable, and it 
was within one year from the filing of the 
complaint. Jones v. Hartford Fire Ins. Co., 
347 F. Supp. 2d 328 (S.D. Miss. 2004). 

Plaintiff waived any objection he might 
have had to not being given timely notice 
of the hearing when he did not raise any 
objections during the proceedings or re- 
quest a continuance when the chancellor 
announced that he would consider the 
motion for contempt and rule upon it. 
Yancey v. Yancey, 752 So. 2d 1006 (Miss. 
1999). 

Service by maiL 

Respondent attorney's motion for addi- 
tional time to plead, filed twenty-three 
days after formal disciplinary complaint 
was filed and mailed to her, was filed on 
the last day permitted. Terrell v. Missis- 
sippi Bar, 635 So. 2d 1377 (Miss. 1994). 



CHAPTER III. PLEADINGS AND MOTIONS 

Rule 7. Pleadings allowed; form of motions. 

(a) Pleadings. There shall be a complaint and an answ^er; a reply to a 
counter-claim denominated as such; an ansv^er to a cross-claim, if the answer 
contains a cross-claim; a third-party complaint, if a person v^ho is not an 



41 



Rule 7 MISSISSIPPI COURT RULES 

original party is summoned under the provisions of Rule 14; and a third-party 
answer, if a third-party complaint is served. No other pleading shall be 
allowed, except that the court may order a reply to an answer or a third-party 
answer. 

(b) Motions and other papers. 

(1) An application to the court for an order shall be by motion which, unless 
made during a hearing or trial, shall be made in writing, shall state with 
particularity the grounds therefor, and shall set forth the relief or order 
sought. The requirement of writing is fulfilled if the motion is stated in a 
written notice of the hearing of the motion. 

(2) The rules applicable to captions, signing, or other matters of form of 
pleadings apply to all motions and other papers provided for by these rules. 

(c) Size of paper All pleadings, motions and other papers, including depo- 
sitions, shall be made on 8 V2" by 11" paper. The format for all depositions shall 
comply with the Guidelines for Court Reporters as provided in Mississippi 
Supreme Court Rule 11. 

(d) Demurrers, pleas, etc., abolished. Demurrers, pleas, and exceptions for 
insufficiency of a pleading shall not be used. 

ADVISORY COMMITTEE HISTORICAL NOTE 

Effective November 19, 1992, Rule 7(c) all pleadings, motions and other papers 
was redesignated Rule 7(d), and a new was adopted. 606-607 So. 2d XIX-XX 
Rule 7(c), requiring letter size paper for (West Miss. Gas. 1993). 

COMMENT 

The purpose of Rule 7 is to facilitate the party to an action proceeds under Rule 14 
court's ability to reach a just decision on to bring in a third party, he must file a 
the merits of a case by providing for a third-party complaint. If a third party is 
simple and elastic pleading and motion served, an answer is required of him. No 
procedure which emphasizes substance reply is mandatory to an answer made to 
rather than form. Rule 7(a) contemplates a cross-claim, unless it contains a counter- 
that in the normal situation of a claim and claim denominated as such. Although a 
a defense the pleadings shall consist of third-party answer may contain a coun- 
only a complaint and an answer; under ter-claim denominated as such. Rule 7(a) 
certain circumstances a reply may be or- does not provide for a mandatory reply 
dered to an answer or a third-party an- thereto. 

swer. Affirmative defenses in the answer Rule 7(b)(1) provides that a motion 
are deemed denied or avoided, and a reply must state with particularity the grounds 
is required if the answer contains a coun- therefore and the relief or order sought, 
ter-claim denominated as such. Other- See generally, V. Griffith, Mississippi 
wise, a reply is unauthorized and may be Chancery Practice, §§ 399, 400 (2d ed. 
stricken or disregarded. In no case may 1950). Reasonable specification is all that 
the pleading go beyond the reply. It should the requirement of particularity imposes, 
be noted that the general provision requir- Good practice dictates that an ex parte 
ing or allowing a reply is subject to the order should be based on a written mo- 
qualification of Rule 5(c). tion. The record will then show the basis 

An answer is required where a cross- for the ex parte order, 

claim is set forth in a co-party's answer. Rule 7(c) requires all filings and deposi- 

Cf. Miss. Code Ann. § 11-5-37 (1972). If a tions to be made on short paper, and all 

42 



RULES OF CIVIL PROCEDURE 



Rule 7 



depositions to comply with transcript re- 
quirements. The purpose of Rule 7(c) is to 
facilitate a system-wide transfer from le- 
gal size paper to letter size paper effective 
July 1, 1993. See Miss.Sup.Ct. Rules 11, 
32, and Guideline for Court Reporters. 
Voluntary compliance with this Rule is to 
begin January 1, 1993; mandatory compli- 
ance will become effective July 1, 1993. 

Rule 7(d) abolishes the use of demurrers 
and pleas and exceptions for insufficiency 
of pleadings. This is in accordance with 
Miss. Code Ann. §§ 11-5-25, 11-5-45 and 
11-7-59 (1972), but is contrary to Miss. 
Code Ann. §§ 11-5-23 and 11-7-79 (1972). 
Under these rules, if a question concern- 
ing the legal sufficiency of a complaint is 
to be raised before answering on the mer- 
its, it should be done by a motion to 
dismiss for failure to state a claim upon 
which relief can be granted. Rule 12(b)(6), 
or for judgment on the pleadings. Rule 
12(c). 

While demurrers are abolished, no pen- 
alty should attach, in light of Rule 1, to 



the denomination of a valid defense or 
objection as a demurrer. The defense or 
objection should be treated as though it 
had been accurately denominated as a 
motion for certain relief. Further, while it 
is desirable that pleadings be properly 
labeled in accordance with Rules 7(a) and 
8(c), there should be no penalty for misla- 
beling. See Shell Petroleum Corp. v. 
Stueve, 25 F. Supp. 879 (D. Minn. 1938); 
Howard v. United States, 28 F. Supp. 985 
(W.D. Wash. 1939); Equitable Life Assur- 
ance Society v. Kit, 26 F. Supp. 880 (E.D. 
Pa. 1939); 5 Wright & Miller, Federal 
Practice and Procedure, Civil § 1196 
(1969). 

As to when a reply should be ordered by 
the court, see 2A Moore's Federal Practice 
I 7.03 (2d ed. 1968), and 5 Wright & 
Miller, Federal Practice and Procedure, 
Civil § 1185(1969). 

[Amended effective November 19, 
1992.1 



JUDICIAL DECISIONS 



Construction. 

Construction with other rules. 

Construction. 

Where defendant in an automobile neg- 
ligence case failed to file an answer to 
plaintiff's complaint but filed a counter- 
claim, the trial court did not err in grant- 
ing plaintiff's motion to dismiss because 
the submission of a counterclaim without 
filing a responsive pleading was procedur- 
ally improper. A counterclaim was a claim 
asserted against a party in a responsive 
pleading pursuant to Miss. R. Civ. P. 7(a); 
because defendant failed to file an answer 
to plaintiff's complaint, his counterclaim 
was not properly before the trial court. 
Keyes v. Berry, 995 So. 2d 861 (Miss. Ct. 
App. 2008). 

Siblings did not submit their objections 
to the special commissioners' report in the 
form of a motion and did not notice a 
hearing, they simply objected to the spe- 
cial commissioners' recommendations and 
suggested alternative partition methods 
commensurate with their position; their 
document failed to include a written no- 
tice of a hearing and did not even include 



are quest for hearing; nothing in their 
document placed the chancellor on notice 
that the siblings desired a hearing on 
their objections. Miles v. Miles, 949 So. 2d 
774 (Miss. Ct. App. 2006), writ of certio- 
rari denied by 949 So. 2d 37, 2007 Miss. 
LEXIS 155 (Miss. 2007). 

Trial court correctly granted a conve- 
nience store's motion to reconsider the 
dismissal of an amended wrongful death 
action against the store because the mo- 
tion to reconsider was an application to 
the court for an order pursuant to Miss. R. 
Civ. P. 7(b)(1). Anderson v. R & D Foods, 
Inc., 913 So. 2d 394 (Miss. Ct. App. 2005). 

The rule does not provide for a respon- 
sive pleading after the assertion of an 
affirmative defense. Smith v. Franklin 
Custodian Funds, Inc., 726 So. 2d 144 
(Miss. 1998). 

Defendants' timely filed motion to stay 
the requirement that they respond to 
plaintiffs' request for admissions was 
equivalent to a motion for an extension of 
time within which to respond, and the 
motion operated to prevent matters set 
forth in request from being deemed admit- 



43 



Rule 8 MISSISSIPPI COURT RULES 

ted. Schmidt v. City of Jackson, 494 So. 2d Construction with other rules. 

348 (Miss. 1986). "Application in writing" for purposes of 

Counter-claim denominated a "cross-pe- avoiding dismissal under Miss. R. Civ. P. 

tition" was sufficiently denominated a 41(d) was required to be in the form of a 

counter-claim that a reply was required motion to the court under Miss. R. Civ. P. 

under this rule. Shannon v. Henson, 499 7. 111. Cent. R.R. Co. v. Moore, 994 So. 2d 

So. 2d 758 (Miss. 1986). 723 (Miss. 2008). 

Rule 8. General rules of pleading. 

(a) Claims for relief. A pleading which sets forth a claim for relief, whether 
an original claim, counter-claim, cross-claim, or third-party claim, shall 
contain 

(1) a short and plain statement of the claim showing that the pleader is 
entitled to relief, and, 

(2) a demand for judgment for the relief to which he deems himself entitled. 
Relief in the alternative or of several different types may be demanded. 

(b) Defenses: form of denials. A party shall state in short and plain terms his 
defenses to each claim asserted and shall admit or deny the averments upon 
which the adverse party relies. If he is without knowledge or information 
sufficient to form a belief as to the truth of an averment, he shall so state and 
this has the effect of a denial. Denials shall fairly meet the substance of the 
averments denied. When a pleader intends in good faith to deny only a part or 
a qualification of an averment, he shall specify so much of it as is true and 
material and shall deny only the remainder. Unless the pleader intends in good 
faith to controvert all the averments of the preceding pleading, he may make 
his denials as specific denials or designated averments or paragraphs, or he 
may generally deny all the averments except such designated averments or 
paragraphs as he expressly admits; but, when he does so intend to controvert 
all of its averments, he may do so by general denial subject to the obligations 
set forth in Rule 11. 

(c) Affirmative defenses. In pleading to a preceding pleading, a party shall 
set forth affirmatively accord and satisfaction, arbitration and award, assump- 
tion of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, 
failure of consideration, fraud, illegality, injury by fellow servant, laches, 
license, payment, release, res judicata, statute of frauds, statute of limitations, 
waiver, and any other matter constituting an avoidance or affirmative defense. 
When a party has mistakenly designated a defense as a counter-claim or a 
counter-claim as a defense, the court on terms, if justice so requires, shall treat 
the pleading as if there had been proper designation. 

(d) Effect of failure to deny. Averments in a pleading to which a responsive 
pleading is required, other than those as to the amount of damages, are 
admitted when not denied in the responsive pleading. Averments in a pleading 
to which no responsive pleading is required or permitted shall be taken as 
denied or avoided. 

(e) Pleading to be concise and direct: consistency. 

(1) Each averment of a pleading shall be simple, concise, and direct. No 
technical forms of pleading or motions are required. 

44 



RULES OF CIVIL PROCEDURE 



Rule 8 



(2) A party may set forth two or more statements of a claim or defense 
alternatively or hypothetically, either in one count or defense or in separate 
counts or defenses. When two or more statements are made in the alternative 
and one of them if made independently would be sufficient, the pleading is not 
made insufficient by the insufficiency of one or more of the alternative 
statements. A party may also state as many separate claims or defenses as he 
has, regardless of consistency. All statements shall be made subject to the 
obligations set forth in Rule 11. 

(f) Construction of pleadings. All pleadings shall be so construed as to do 
substantial justice. 

(g) Pleadings shall not be read or submitted. Pleadings shall not be carried 
by the jury into the jury room when they retire to consider their verdict, except 
insofar as a pleading or portion thereof has been admitted in evidence. 

(h) Disclosure of minority or legal disability. Every pleading or motion made 
by or on behalf of a person under legal disability shall set forth such fact unless 
the fact of legal disability has been disclosed in a prior pleading or motion in 
the same action or proceeding. 

COMMENT 



The purpose of Rule 8 is to give notice, 
not to state facts and narrow the issues as 
was the purpose of pleadings in prior 
Mississippi practice. Consequently, the 
distinctions between "ultimate facts" and 
"evidence" or conclusions of law are no 
longer important since the rules do not 
prohibit the pleading of facts or legal 
conclusions as long as fair notice is given 
to the parties. 5 Wright «& Miller, Federal 
Practice and Procedure, Civil §§ 1202, 
1218 (1969); 2A Moore's Federal Practice 
n 8.12, 8.13 (2d ed. 1968); contra, Pigott 
V. Boeing Co., 240 So.2d 63 (Miss. 1970); 
and King v. Mississippi P. & L. Co., 244 
Miss. 486, 142 So.2d 222 (1962) (it is not 
sufficient to allege negligence as a mere 
conclusion of the pleader, but facts must 
be pleaded showing actionable negli- 
gence); see also Bennett v. Hardwell, 214 
Miss. 390, 59 So.2d 82 (1952); McLemore 
V. McLemore, 173 Miss. 765, 163 So. 500 
(1935) (ultimate essential facts upon 
which action is based must be averred, but 
not the items of evidence by which ulti- 
mate facts are to be proved); and Barnes v. 
Barnes, 317 So.2d 387 (Miss.1975) (where 
issue of possession of property was not 
presented by the pleadings in divorce ac- 
tion and no proof as to possession ap- 
peared in record, that portion of decree 
awarding possession of land to complain- 



ant was not substantiated by proof and 
was not valid). 

Although Rule 8 abolishes many techni- 
cal requirements of pleadings, it does not 
eliminate the necessity of stating circum- 
stances, occurrences, and events which 
support the proffered claim. Averments of 
residency are no longer required unless 
needed by the claim, as in divorce proceed- 
ings. See Miss. Code Ann. § 93-5-5 (1972). 
The rule allows the claims to be stated in 
general terms so that the rights of the 
client are not lost by poor drafting skills of 
counsel. 

The list of affirmative defenses in Rule 
8(c) is not intended to be exhaustive. Use- 
ful in determining what must be pleaded 
under 8(c) are considerations of policy, 
fairness, and probability. See 5 Wright & 
Miller, supra, 1271. The pleader normally 
will not be penalized for stating matter 
that technically is not an affirmative de- 
fense. 

As with the statement of claims, notice 
of the defense raised by the defendant. 
Rule 8(d), is all that is required. 

Rule 8(f) repudiates the prior Missis- 
sippi doctrine of construing the pleadings 
most strongly against the pleader. See, 
e.g., Taylor v. Twiner, 193 Miss. 410, 9 
So.2d 644 (1942); V. Griffith, Mississippi 



45 



Rule 8 



MISSISSIPPI COURT RULES 



Chancery Practice, §§ 82, 175, 288, 307, 
432 (2d ed. 1950). 

Rule 8(g) accords with traditional Mis- 
sissippi practice. See Miss. Code Ann. 
§ 11-7-151 (1972) (all papers read in evi- 
dence on the trial of any cause may be 
carried from the bar by the jury). 



Rule 8(h) is intended to ensure that 
adequate notice is provided when one sues 
or defends for the beneficial interest of 
another. See generally V. Griffith, supra, 
§§ 127-150. 



JUDICIAL DECISIONS 



In general. 
Construction. 
Applicability. 
Affirmative defenses. 
Alternative pleadings. 
Claims for relief. 
Sufficiency of pleadings. 

In general. 

When a circuit court accepted a judg- 
ment debtor's letter of credit in lieu of a 
supersedeas bond, the circuit court re- 
tained jurisdiction to do so; however, the 
circuit court correctly determined that it 
lacked jurisdiction to cancel the judgment 
and to remove the judgment from the 
county's rolls. Fitch v. Valentine, 946 So. 
2d 780 (Miss. 2007). 

In her negligence action against a 
homeowner, decided in the homeowner's 
favor on summary judgment, on appeal, 
the worker asserted that Miss. R. Civ. R 
8(c) clearly set forth that the defense of 
statute of limitations was an affirmative 
defense which had to be set forth in re- 
sponsive pleadings and that Miss. R. Civ. 
R 12(b) required every defense to be as- 
serted in responsive pleadings, except the 
seven which could be made by motion, and 
that the statute of limitations defense was 
not included therein; however, the defense 
of statute of limitations was proper for 
summary judgment where there existed 
no genuine issues of material fact on the 
issue. Robertson v. Moody, 918 So. 2d 787 
(Miss. Ct. App. 2005). 

In a suit to confirm title to real property, 
the plaintiff was required to state with 
reasonable certainty the nature of a 
named defendant's claim to the property, 
and the trial court's entry of judgment on 
the pleadings, given a lack of such state- 
ment, was plain error. Derby v. 20/20 
Invs., LLC, 807 So. 2d 500 (Miss. Ct. App. 
2002). 



While this rule abolishes many techni- 
cal requirements of pleadings, it does not 
eliminate necessity of stating circum- 
stances, occurrences, and events which 
support the proffered claim. PACCAR Fin. 
Corp. V. Howard, 615 So. 2d 583 (Miss. 
1993). 

While it is unnecessary for a party to 
state facts in detail, it is necessary to state 
at least enough facts to put the opposing 
side on fair notice of the basis of one's 
claim. Hester v. Bandy, 627 So. 2d 833 
(Miss. 1993). 

Construction. 

Miss. R. Civ. P. 8 does require that a 
party assert a demand for prejudgment 
interest in the appropriate pleading; on 
the other hand, Rule 8 does not require 
that a party seeking prejudgment interest 
must plead the specific date on which the 
prejudgment interest allegedly is due. 
Upchurch Plumbing, Inc. v. Greenwood 
Utils. Comm'n, 964 So. 2d 1100 (Miss. 
2007). 

Neither attorney's letter to member of 
bar complaint tribunal nor her discovery 
requests constituted an "answer" or a suf- 
ficiently responsive pleading to a disci- 
plinary complaint of the Mississippi Bar, 
and therefore tribunal did not err in en- 
tering default against attorney. Harrison 
V. Mississippi Bar, 637 So. 2d 204 (Miss. 
1994). 

When a complaint is tested via motion 
under M.R.C.P Rule 12(b)(6) for failure to 
state a claim upon which relief may be 
granted, sufficiency of complaint is in sub- 
stantial part determined by reference to 
subdivisions (a) and (e) of Rule 8. Luckett 
V. Mississippi Wood, Inc., 481 So. 2d 288 
(Miss. 1985). 

Applicability. 

Complaint, otherwise properly filed, 
may not be dismissed, and need not be 



46 



RULES OF CIVIL PROCEDURE 



Rule 8 



amended, simply because the plaintiff 
failed to attach a certificate or waiver; the 
certificate did not indicate whether the 
daughter's attorney consulted with the 
expert prior to, or after, filing the com- 
plaint; if the former, then the daughter 
was in compliance with the enforceable 
portion of § 11-1-58, and if the latter, then 
the pretrial statutory requirement was 
not met, and the trial court had to dismiss 
the complaint with prejudice. Wimley v. 
Reid, 991 So. 2d 135 (Miss. 2008). 

Mississippi Rules of Civil Procedure are 
only applicable in divorce actions when 
governing statute is silent; however, 
where issue is sufficiency of pleadings to 
support a specific award, general rules of 
pleading govern, as there is no inconsis- 
tent statutory provision. Crowe v. Crowe, 
641 So. 2d 1100 (Miss. 1994). 

Affirmative defenses. 

Mortgagors' affirmative defense of elec- 
tion of remedies was waived under Miss. 
R. Civ. P. 8(c) because the first reference to 
the doctrine of election of remedies was 
within a supplemental memorandum in 
support of the mortgagors' motion for re- 
consideration and to vacate a judgment in 
favor of the mortgagee. Knight Props, v. 
State Bank & Trust Co., 77 So. 3d 491 
(Miss. Ct. App. 2011). 

In a breach of contract action brought 
by the employee, the employer did not 
assert any affirmative defenses in his an- 
swer to the employee's complaint. Miss. R. 
Civ. P. 8(c); rather, the employer waited 
and asserted them in his motion for sum- 
mary judgment, which was over four 
years later. When a responsive pleading 
was required, all affirmative defenses 
must be raised in that pleading; therefore, 
the chancellor erred in relying on those 
affirmative defenses in reaching his judg- 
ment. Harris v. Tom Griffith Water Well & 
Conductor Serv., 26 So. 3d 352 (Miss. Ct. 
App. Jan. 27, 2009), reversed by 26 So. 3d 
338, 2010 Miss. LEXIS 46, 30 I.E.R. Cas. 
(BNA) 586 (Miss. 2010). 

Despite the fact that a county failed to 
set forth the affirmative defense of con- 
tributory negligence in the pleadings as 
required under Miss. R. Civ. P. 8(c), nei- 
ther a car driver nor a passenger mother 
voiced an objection at either request by 
the county to apply comparative negli- 



gence during the trial and thus, the de- 
fense could be treated as if it had been 
raised in the pleadings under Miss. R. Civ. 
P. 15(b). Callahan v. Ledbetter, 992 So. 2d 
1220 (Miss. Ct. App. 2008). 

College did not waive its right to arbi- 
trate students' causes of action centered 
around the prospect of "educational mal- 
practice" because, while it was true that 
the college took part in the pretrial litiga- 
tion process, it consistently advanced its 
arbitration rights. In its answer, the col- 
lege asserted arbitration as an affirmative 
defense, and the college filed its motion to 
compel arbitration at the same time it 
filed its answer. Va. College, LLC v. Moore, 
974 So. 2d 269 (Miss. Ct. App. 2008). 

By including the motion to compel arbi- 
tration in its answer, a termite compnay 
complied with Miss. R. Civ. P. 8(c) and 
sufficiently preserved for appeal the issue 
of whether the matter between the 
compnay and clients should be arbitrated. 
Terminix Int'l, Inc., Ltd. P'ship v. Rice, 904 
So. 2d 1051 (Miss. 2004). 

Where a termite inspector did not file a 
motion to compel arbitration until seven 
months after answering the complaint, 
and did not raise it as a defense in its 
answer, the appellate court held that the 
inspector had waived its right to demand 
arbitration. Pass Termite & Pest Control, 
Inc. V. Walker, 904 So. 2d 1030 (Miss. 
2004). 

In the mother's child custody modifica- 
tion action, while personal jurisdiction 
was an affirmative defense, which was 
waived if not affirmatively pled, the Uni- 
form Child Custody Jurisdiction Act 
(UCCJA), specifically Miss. Code Ann. 
§ 93-23-5(1), required personal jurisdic- 
tion of the minor child and the contestant. 
The father, who had custody and resided 
with the child in California, properly 
raised the issue of lack of jurisdiction over 
the child in his amended complaint, and 
the chancellor's finding that she lacked 
jurisdiction over the child rendered the 
issue of jurisdiction over the father moot. 
Scaife v. Scaife, 880 So. 2d 1089 (Miss. Ct. 
App. 2004). 

Court did not err in dismissing an em- 
ployee's action against an employer for 
wrongful termination because the em- 
ployee had agreed to release the employer 



47 



Rule 8 



MISSISSIPPI COURT RULES 



from all civil liability; it did not matter 
that the affirmative defense of release was 
not raised in the employer's answer. Miss. 
R. Civ. P. 8(c) was not a bar to the trial 
judge's consideration of the release. Ran- 
kin V. Clements Cadillac, Inc., 905 So. 2d 
710 (Miss. Ct. App. 2004). 

Appellant tax sale purchaser raised the 
statute of limitations in his appeal of the 
lower court's decision that the tax sale of 
the landowners' property was void due to 
the lack of notice provided; however, this 
issue was not raised as an affirmative 
defense, and was not properly before the 
appellate court. Alexander v. Womack, 857 
So. 2d 59 (Miss. 2003). 

Laches was in the nature of an affirma- 
tive defense that had to be affirmatively 
pled under the provisions of Miss. R. Civ. 
R 8(c), and the appellate court declined to 
address the issue when it was raised for 
the first time on appeal. Aron v. Reid, 850 
So. 2d 108 (Miss. Ct. App. 2002). 

The alleged voidness of a judgment is an 
avoidance or affirmative defense which 
must be pled under subsection (c) or it is 
waived. Bank of Miss. v. Knight, 208 F.3d 
514 (5th Cir. 2000). 

Appellants failed to affirmatively plead 
defense of laches and also failed to raise 
the defense at any time during hearings, 
and therefore they were procedurally 
barred from raising defense of laches for 
the first time on appeal. Goode v. Village of 
Woodgreen Homeowners Ass'n, 662 So. 2d 
1064 (Miss. 1995). 

If a party fails to raise the Statute of 
Frauds as a defense in his answer to a 
complaint, he will be deemed to have 
waived the defense. Canizaro v. Mobile 
Communications Corp. of Am., 655 So. 2d 
25 (Miss. 1995). 

Defendant's answer to complaint was 
sufficient, as defendant was not required 
to plead timeliness of plaintiff's demand 
under recourse agreement as an affirma- 
tive defense, and therefore timeliness is- 
sue was not waived. Associates Com. 
Corp. V. Parker Used Trucks, Inc., 601 So. 
2d 398 (Miss. 1992). 

The maker of a note who claims it is 
unenforceable as against public policy 
must say so affirmatively by way of de- 
fense. Martin v. Estate of Martin, 599 So. 
2d 966 (Miss. 1992). 



Lessee was required to affirmatively 
plead that acceleration clause in lease was 
a penalty, and thus substantially unen- 
forceable, in order to employ that theory 
and avoid obligations otherwise provided 
under literal language of lease. Hertz 
Commercial Leasing Div. v. Morrison, 567 
So. 2d 832 (Miss. 1990). 

Allegation that corporate plaintiff had 
not qualified to do business in Mississippi 
and thus had no right to sue in Mississippi 
was an affirmative defense; trial court's 
default judgment, and its denial of defen- 
dant's motion to vacate, stood as a final 
judgment that defendant's affirmative de- 
fense was not timely pleaded. Bailey v. 
Georgia Cotton Goods Co., 543 So. 2d 180 
(Miss. 1989). 

Defendants' plea under exclusive rem- 
edy provision of workers' compensation 
act was an affirmative defense and, as 
such, defendants bore the burden of pro- 
duction and the risk of non-persuasion on 
that issue. McDaniel v. Ritter, 556 So. 2d 
303 (Miss. 1989). 

Alternative pleadings. 

Trial court did not err in precluding 
evidence that accident victim had sued 
and then settled with his father's liability 
insurer before trial, since victim was sim- 
ply alleging and supporting alternative 
theories of recovery, as allowed by this 
rule. Sperry-New Holland v. Prestage, 617 
So. 2d 248 (Miss. 1993). 

Although plaintiffs failed to particu- 
larly describe any easement in their 
pleadings, this failure was not fatal under 
modern rules of pleading, since plaintiffs 
clearly prayed alternatively for an ease- 
ment by necessity. Broadhead v. 
Terpening, 611 So. 2d 949 (Miss. 1992). 

Party may combine a suit to determine 
heirship with a suit to contest a will, and 
will contestant's allegation that she was 
decedent's sole heir at law was sufficient 
as a request for determination of heirship. 
Dees V. Estate of Moore, 562 So. 2d 109 
(Miss. 1990). 

Claims for relief. 

Where the allegations by a farm against 
the Mississippi Transportation Commis- 
sion for flooding of the farm's property had 
sounded in negligence, the farm could not 
assert Miss. Const, art. 3, § 17 for the 



48 



RULES OF CIVIL PROCEDURE 



Rule 8 



first time in its response to the Commis- 
sion's summary judgment motion as a 
defense, because the MTC did not have 
sufficient notice of the taking claim for the 
farm's response to the summary judgment 
motion. B & W Farms v. Miss. 
Transp.Comm'n, 922 So. 2d 857 (Miss. Ct. 
App. 2006). 

The chancellor did err in basing a find- 
ing of contempt in part on the defendant 
husband's failure to pay April, 1998 ali- 
mony and child support and in including 
the amount past due in the judgment 
against him, notwithstanding the conten- 
tion that the wife did not specifically seek 
that relief in her amended counter-motion 
for contempt, which was filed on April 6, 
1998, since she was not required to spec- 
ulate as to the dollar amount of unpaid 
obligations that might accrue between the 
time her pleading was filed and a hearing 
held on the matter. Watkins v. Watkins, 
748 So. 2d 808 (Miss. Ct. App. 1999). 

Chancellor's award of lump sum ali- 
mony was not beyond scope of the plead- 
ings, where complaint asked for perma- 
nent support and maintenance and other 
general relief, and husband could not rea- 
sonably have been surprised by chancel- 
lor's award of alimony in a divorce action. 
Crowe V. Crowe, 641 So. 2d 1100 (Miss. 
1994). 

In view of notice pleading requirements 
of M.R.C.P. Rule 8, chent's complaint 
against his former attorney stated at least 
one actionable cause upon which relief 
could be granted, and therefore summary 
judgment in favor of attorney was re- 
versed. Owen V Pringle, 621 So. 2d 668 
(Miss. 1993). 

Chancellor did not err in imposing lien 
in wife's favor to secure lump sum alimony 
payment, despite absence in wife's plead- 
ings of any request for lien. Smith v. 
Smith, 607 So. 2d 122 (Miss. 1992). 

Circuit court had no authority to dis- 
miss inmate's pro se complaint unless it 
could fairly and objectively be said that he 
could prove no set of facts in support of his 
claim which would entitle him to relief 
Singleton v Stegall, 580 So. 2d 1242 
(Miss. 1991). 

Sufficiency of pleadings. 

Although the resident's complaint did 
not specifically track the language of the 



statute, it was not fatal to the issue of 
whether the police officer and the city 
were liable under the Mississippi Tort 
Claims Act, Miss. Code Ann. § 11-46- 
9(l)(c); Rule 8 did not have a magic words 
requirement! Scott v. City of Goodman, 
997 So. 2d 270 (Miss. Ct. App. 2008). 

Trial court erred in dismissing plain- 
tiff's action against defendant under Miss. 
R. Civ. R 12(b)(6) and/or (c) because, as 
permitted by Miss. R. Civ R 8(a)(2) and 
(e)(2), plaintiff permissibly pleaded a 
claim of both negligence and assault, not- 
withstanding that the claims were incon- 
sistent. Jordan v. Wilson, 5 So. 3d 442 
(Miss. Ct. App. 2008), writ of certiorari 
denied by 11 So. 3d 1250, 2009 Miss. 
LEXIS 130 (Miss. 2009). 

Trial court erred in granting a law firm's 
motion for summary judgment in a legal 
malpractice suit because whether an in- 
surance company adequately alleged in its 
amended complaint that it was the as- 
signee of the insurance company's third 
party administrator's claims against the 
firm, and thus the real party in interest, 
was a genuine issue. MS Comp Choice, 
SIF V Clark, Scott & Streetman, 981 So. 
2d 955 (Miss. 2008). 

In a dispute involving a promissory 
note, an issue of which statute of limita- 
tions applied was not decided because the 
creditor never filed suit to foreclose on the 
note, and he never filed collection on the 
note; further, the creditor's non-existent 
pleadings did not satisfy the pleading re- 
quirement of Miss. R. Civ. P. 8 and the 
debtor had no preceding pleadings to 
which to respond and allege affirmative 
defenses. Chimento v. Fuller, 965 So. 2d 
668 (Miss. 2007). 

Complaint alleging slander failed to 
comply with relaxed, notice-pleading re- 
quirements of Miss. R. Civ. P. 8 because it 
did not specify which plaintiff was slan- 
dered by which defendant and it did not 
set forth statements, paraphrased or ver- 
batim, that constituted slander; without 
setting forth any information in the com- 
plaint regarding the statements, to whom 
the statements were directed, by whom 
the statements were made, and how the 
statements were slanderous, the allega- 
tion that appellees made "slanderous 
statements" constituted a bare legal con- 



49 



Rule 8 



MISSISSIPPI COURT RULES 



elusion with no support in the complaint. 
Chalk V. Bertholf, 980 So. 2d 290 (Miss. 
Ct. App. 2007). 

Parent company of an alcohol permit 
holder should have been dismissed from a 
personal injury case because it was not 
hable under Miss. Code Ann. § 67-1-83 
since it was not a permit holder itself or 
an employee of such; moreover, the plead- 
ings did not adequately state a claim 
showing that the corporate veil should 
have been pierced. Penn Nat'l Gaming, 
Inc. V. Ratliff, 954 So. 2d 427 (Miss. 2007). 

Judgment was properly awarded to 
plaintiffs in their suit against defendants 
for encroachment on their property where 
plaintiffs' pleadings met the requirements 
of notice pleading, as required by Miss. R. 
Civ. P. 8(a); the complaint informed defen- 
dants that the suit involved the placement 
of a boundary line, as the complaint al- 
leged that a fence was on land that be- 
longed to plaintiffs. Crosswhite v. Golmon, 
939 So. 2d 831 (Miss. Ct. App. 2006). 

In a forfeiture proceeding, the State's 
complaint with regards to defendant's real 
property did not meet the requirements of 
Miss. R. Civ. P. 8(a), but defendant and his 
mother did not seek a prior ruling on the 
matter, and proceeded to trial; at the 
conclusion of its case-in-chief, the State 
made an oral motion to conform the plead- 
ings to the proof, which included the de- 
scription of the real property on which 
forfeiture was sought, and the reasons for 
the same. When the trial court inquired 
whether defendant and his mother ob- 
jected to the motion to amend, their attor- 
ney stated that they had no objection, and 
the trial court approved the amendment; 
that amendment allowed the State's com- 
plaint to meet the threshold pleading re- 
quirements of Rule 8(a). Cannon v. State, 
918 So. 2d 734 (Miss. Ct. App. 2005), writ 
of certiorari denied by 2005 Miss. LEXIS 
537 (Miss. Aug. 25, 2005), affirmed in part 
and reversed in part by 919 So. 2d 913, 
2005 Miss. LEXIS 764 (Miss. 2005). 

In a suit for alleged asbestos-related 
injuries, the trial court's order granting 
plaintiffs' proposed case management or- 
der was reversed, where plaintiffs submit- 
ted pleadings which did not, at the very 
least, include the name or names of the 
defendants against whom each plaintiff 



alleged a claim, the time and location of 
exposure, and the medical condition 
caused by such exposure; this was a clear 
failure to comply with Miss. R. Civ. P. 8, 9, 
10, and 11. 3M Co. v. Hinton, 910 So. 2d 
526 (Miss. 2005). 

In a mass-joined asbestos action 
brought by plaintiff consumers against 
defendants, manufacturers and retailers, 
seeking recovery for injuries resulting 
from exposure to asbestos-containing 
products, the consumers were entitled to 
have the action remanded to state court 
because defendants failed to show that 
certain local retailers were fraudulently 
joined for the purpose of defeating re- 
moval jurisdiction. Defendants' sugges- 
tion that the consumers were required to 
set forth detailed allegations against the 
local retailers lacked merit under Miss. R. 
Civ. P 8(a)(2) and Fed. R. Civ. P 8(a)(2), 
and, under liberal notice pleading rules, 
the complaint was not defective because it 
clearly indicated that the consumers were 
proceeding against the local retailers un- 
der a standard theory of strict products 
liability. Duffin v. Honeywell Int'l, Inc., 
312 F. Supp. 2d 869 (N.D. Miss. Apr. 5, 
2004). 

Where a widow filed an action against a 
city, its police chief, and two police officers, 
arising from the shooting death of her 
husband in his home, the trial court erred 
in dismissing her amended complaint un- 
der the Mississippi Tort Claims Act 
(MTCA), Miss. Code Ann. § 11-46-1 et 
seq., as she had properly specified and 
separated the negligence-and-tort-based 
state law claims from the constitutional 
tort claims under 42 U.S.C.S. § 1983 in 
that amended complaint; the MTCA oper- 
ated as the exclusive remedy for the state 
law civil claims against the city, the chief, 
and the officers, and Miss. R. Civ. P. 8(a) 
required no more than that notice of a 
claim be given. Elkins v. McKenzie, 865 
So. 2d 1065 (Miss. 2003). 

In an action by an attorney to recover a 
fee based on quantum meruit after he was 
discharged by his client, the complaint 
was insufficient to support a claim for 
conversion by the former client's subse- 
quently hired attorney where the sole ba- 
sis advanced in the complaint against the 
subsequently hired attorney was for 



50 



RULES OF CIVIL PROCEDURE Rule 9 

breachof an alleged ethical duty. Estate of vided sufficient notice to defendant that 

Stevens v. Wetzel, 762 So. 2d 293 (Miss, plaintiff sought to recover punitive dam- 

2000). ages for defendant's bad faith refusal to 

Plaintiff sufficiently asserted theory of pay. Dynasteel Corp. v. Aztec Indus., Inc., 

equitable estoppel in its pleadings, where 611 So. 2d 977 (Miss. 1992). 

complaint clearly put defendant on notice life's pleadings in divorce action were 

that p aintiff changed its position, detri- ^^ffieient to give chancery court authority 

mentally, in reliance on defendant sassur- ^^ ^^^^^ partition of marital home; al- 

ance that lunds tor completion of con- .. i,ij- jj ^ ^.-^i j 

, .. ., uj/^u-^- though pleadings did not contain the word 

struction project were m hand. Christian ,, ^.^. » xi. i • i j • i i i i 

Methodist Episcopal Church v. S & S Partition , they plain y advised husband 

Constr. Co., 615 So. 2d 568 (Miss. 1993). ^}'^^ ^^^ ^^^ l^^^^^^f ^^ ^^^ ^^^^^^1 ^^s^- 

Pleadings were sufficient to support ^^^^^ ^^ a source of a monetary award, 

trial court's award of punitive damages Johnson v. Johnson, 550 So. 2d 416 (Miss. 

against defendant, where complaint pro- 1989). 

RESEARCH REFERENCES 

Law Reviews — Taming an Elephant: the Impact of Mississippi Tort Reforms, 26 
A Closer Look at Mass Tort Screening and Miss. C. L. Rev. 253, 2006/2007. 

Rule 9. Pleading special matters. 

(a) Capacity. The capacity in which one sues or is sued must be stated in 
one's initial pleading. 

(b) Fraud, mistake, condition of the mind. In all averments of fraud or 
mistake, the circumstances constituting fraud or mistake shall be stated with 
particularity. Malice, intent, knowledge, and other conditions of mind of a 
person may be averred generally. 

(c) Conditions precedent. In pleading the performance or occurrence of 
conditions precedent, it is sufficient to aver generally that all conditions 
precedent have been performed or have occurred. A denial of performance or 
occurrence shall be made specifically and with particularity. 

(d) Official document or act: ordinance or special statute. In pleading an 
official document or official act it is sufficient to aver that the document was 
issued or the act was done in compliance with the law. In pleading an 
ordinance of a municipality or a county, or a special, local, or private statute or 
any right derived therefrom, it is sufficient to identify specifically the ordi- 
nance or statute by its title or by the date of its approval, or otherwise. 

(e) Judgment. In pleading a judgment or decision of a domestic or foreign 
court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient 
to aver the judgment or decision without setting forth matter showing 
jurisdiction to render it. 

(f) Time and place. For the purpose of testing the sufficiency of a pleading, 
averments of time and place are material and shall be considered like all other 
averments of material matter. 

(g) Special damage. When items of special damage are claimed, they shall 
be specifically stated. 

(h) Fictitious parties. When a party is ignorant of the name of an opposing 
party and so alleges in his pleading, the opposing party may be designated by 

51 



Rule 9 



MISSISSIPPI COURT RULES 



any name, and when his true name is discovered the process and all pleadings 
and proceedings in the action may be amended by substituting the true name 
and giving proper notice to the opposing party. 

(i) Unknown parties in interest. In an action where unknown proper parties 
are interested in the subject matter of the action, they may be designated as 
unknown parties in interest. 

COMMENT 



The purpose of Rule 9 is to permit the 
pleading of special matters with maxi- 
mum emphasis on the substance of the 
pleading rather than on form. 

Rule 9(a) is the same as was required by 
prior Mississippi procedure. See V. Grif- 
fith, Mississippi Chancery Practice, 164 
(2d ed. 1950). A party desiring to raise an 
issue as to the legal existence, capacity, or 
authority of a party will be required to do 
so by specific negative averment. This is 
consistent with past procedure which held 
that affirmative defenses cannot be relied 
upon unless specially pleaded. See Miss. 
Code Ann. § 11-7-59(4) (1972); White v. 
Thomason, 310 So.2d 914 (Miss. 1975). If 
lack of capacity appears affirmatively on 
the face of the complaint, the defense may 
be raised by a motion pursuant to Rule 
12(b)(6) (failure to state a claim upon 
which relief may be granted). Rule 12(c) (a 
motion for judgment on the pleadings), or 
Rule 12(f) (a motion to strike). 

Rule 9(b) is well-established in common 
law and past Mississippi practice. McMa- 
hon V. McMahon, 247 Miss. 822, 157 So.2d 
494 (1963) (fraud will not be inferred or 
presumed and cannot be charged in gen- 
eral terms; the specific facts which consti- 
tute fraud must be definitely averred); 
Griffith, supra, §§ 176, 589. "Circum- 
stances" refers to matters such as the 
time, place, and contents of the false rep- 
resentations, in addition to the identity of 
the person who made them and what he 
obtained as a result. See 5 Wright & 
Miller, Federal Practice and Procedure, 
Civil § 1297 (1969). The so-called "text- 
book" elements of fraud may be pleaded 
generally, i. e., (1) false representation of a 
material fact. Sovereign Camp, W.O.W. v. 
Boykin, 182 Miss. 605, 181 So. 741 (1938); 
(2) knowledge of or belief in its falsity by 
the person making it, H. D. Sojourner Co. 
V. Joseph, 186 Miss. 755, 191 So. 418 



(1939); (3) belief in its truth by the person 
to whom it is made. Pilot Life Ins. Co. v. 
Wade, 153 Miss. 874, 121 So. 844 (1929); 
(4) intent that it should be acted upon, 
McNeer & Dodd v. Norfleet, 113 Miss. 611, 
74 So. 577 (1917); (5) detrimental reUance 
upon it by the person claiming to have 
been deceived, Clopton v. Cozart, 21 Miss. 
363 (1850). 

Conditions of mind, such as intent and 
malice, are required to be averred only 
generally Cf. Benson v. Hall, 339 So.2d 
570 (Miss. 1976), and Edmunds v. Delta 
Democrat Pub. Co., 230 Miss. 583, 93 
So.2d 171 (1957) (charge in a libel suit 
that defendant published libelous mate- 
rial "falsely and maliciously or with reck- 
less disregard of the truth" without alleg- 
ing any facts, were mere conclusions of the 
pleader and were not admitted on demur- 
rer). 

Rule 9(c) conforms to traditional Missis- 
sippi practice. See Miss. Code Ann. § 11- 
7-109 (1972); McClave-Brooks Co. v. 
Belzoni Oil Works, 113 Miss. 500, 74 So. 
332 (1917). 

Rule 9(d) provides that in pleading an 
official document or official act, it is suffi- 
cient to aver that the document was is- 
sued or the act done in compliance with 
law; it is not necessary to allege facts 
showing due compliance. A defense based 
on the theory that an official document or 
act is defective must be raised by a specific 
denial. See Ludlow Corp. v. Arkwright- 
Boston Mfrs. Mut. Ins. Co., 317 So.2d 47 
(Miss. 1975) (portions of official document 
pertaining to Hurricane Camille, pre- 
pared by U.S. Army Corps of Engineers, 
were admitted into evidence to prove em- 
pirical facts; portions containing hearsay, 
conclusions, and irrelevant information 
were excluded). 

Pleading ordinances, under Rule 9(d), is 
not significantly different from prior Mis- 



52 



RULES OF CIVIL PROCEDURE 



Rule 9 



sissippi practice. When a claim or defense 
is founded upon an ordinance, the pleader 
must specifically refer to the ordinance, as 
by its title or by the date of its approval; it 
is not necessary that a certified copy of the 
ordinance be attached thereto, as was 
formerly required. See White v. 
Thomason, supra. 

Rule 9(d) does not modify the require- 
ment of proof of local and private legisla- 
tion before such can be admitted into 
evidence; Miss. Code Ann. § 13-1-147 
(1972) provides that such legislation need 
not be specially pleaded. 

Rule 9(e) is identical to Federal Rule 
9(e) and conforms, generally, to prior Mis- 
sissippi practice. See Miss. Code Ann. 
§ 11-7-111 (1972). Of course, MRCP 10(d) 
states that a copy of the judgment should 
be attached to the pleading. If a defendant 
wishes to question the validity of the judg- 
ment being sued upon, he must do so 
specifically in his answer; he cannot raise 
the issue by a general denial or by a 
motion to dismiss. Once jurisdiction is put 
in issue, however, the party relying on the 
earlier judgment or decision has the bur- 
den of establishing its validity. 5 Wright & 
Miller, supra, §§ 1306-1307. 

Under common law practice, allegations 
of time and place were considered imma- 
terial to a statement of the cause of action. 
A party was required to plead time accu- 
rately only when it formed a material part 
of the substance of the case, as, for exam- 
ple, the date of a written instrument being 
sued upon. Allegations of place were also 
immaterial and only in local, as opposed to 
transitory, causes of action was it neces- 
sary to plead this assertion accurately. 
MRCP 9(f) treats time and place as mate- 
rial on a motion testing the sufficiency of 
the pleadings; accuracy in pleading time 
and place will facilitate the identification 
and isolation of the transaction or event in 
issue and provide mechanism for the early 
adjudication or testing of certain claims 
and defenses most notably, statutes of 
limitations. 5 Wright & Miller, supra, 
§§ 1308-1309; See also V. Griffith, supra, 
§ 83(a). 

Rule 9(g) conforms to past Mississippi 
practice requiring a detailed pleading of 
special damages and only a general plead- 
ing of general damages. 



Briefly stated, "general" damage may be 
considered to be that which is so usual an 
accompaniment of the kind of breach or 
wrongdoing alleged in a complaint that 
the mere allegation of the wrong gives 
sufficient notice. Conversely, "special" 
damage is loss or injury of relatively un- 
usual kind, which without specific notice 
the adversary would not understand to be 
claimed. See Vicksburg & M.R.R. Co. v. 
Ragsdale, 46 Miss. 458 (1872) (damages 
as may be presumed necessarily to result 
from a breach of contract need not be 
stated; special damages must be specifi- 
cally stated). 

General damage includes all those nor- 
mal and standardized elements of recov- 
ery which the courts have adopted as safe 
bases of compensation and as to which 
they find it desirable to forego, not only 
the requirement of detailed pleading, but 
other requirements such as the "contem- 
plation of the parties" requirement in con- 
tracts, or the requirement of certainty of 
proof. In contract and property cases, gen- 
eral elements of damage are usually based 
upon evaluation. Examples are the sell- 
er's claim for the refusal of the buyer to 
take the land or goods, measured by the 
difference between the contract price and 
the market value, or damages for the 
wrongful detention of land or goods, mea- 
sured by the value of the use of the rental, 
valued during the delay. Similarly, when 
interest is allowable as damages, it is 
general damage. 

The kinds of damage which are special 
and required to be set out in the complaint 
are infinite; only a few instances will be 
noted here. In cases of injury or to de- 
struction of property, or its detention, any 
specific claims for damages other than the 
standardized compensation (based upon 
the value of the property and interest, or 
in case of detention, the rental or usable 
value) would be special. So, in actions for 
breach of contract all consequential loses, 
such as expenses or the loss of profits 
expected upon transactions with third 
persons, must be specially pleaded. In 
personal injury suits, the following are 
usually treated as matters to be specially 
pleaded: loss of time and earnings; impair- 
ment of future earning capacity; aggrava- 
tion by the injury of a pre-existing disease; 



53 



Rule 9 



MISSISSIPPI COURT RULES 



and insanity resulting from the injury. C. 
McCormick, Damages § 8 (1935). 

Rule 9(h) is an adaptation of Miss. Code 
Ann. § 11-7-39 (1972), while Rule 9(i) is 
an adaptation of Miss. Code Ann. § 11- 



5-11 (1972); neither provision is new to 
Mississippi practice. 

[Comment amended effective April 13, 
2000.1 



JUDICIAL DECISIONS 



Capacity of state officials. 

Challenging subject matter jurisdiction. 

Fictitious parties. 

Fraud. 

Malice. 

Mistake. 

Names of defendants. 

Special damages. 

Capacity of state officials. 

In a state employee's suit alleging that 
he was terminated in retaliation for exer- 
cising freedom of speech, the complaint 
sufficiently identified, as required by 
Miss. R. Civ. P. 9(a), the individual state 
officials against whom relief was sought 
and the fact that these officials were being 
sued in their personal or individual capac- 
ity E. Miss. State Hosp. v. Callens, 892 So. 
2d 800 (Miss. 2004). 

Challenging subject matter jurisdic- 
tion. 

In an interlocutory appeal from orders 
of the Tallahatchie County Chancery 
Court and the Leflore County Circuit 
Court regarding the transfer of plaintiff 
estate from Tallahatchie to Leflore county, 
denial of defendants' motion to void the 
appointment and denial of defendants' 
motion for summary judgment, defen- 
dants had standing before both courts 
because they challenged the Tallahatchie 
court's subject matter jurisdiction to open 
the estate; under Miss. R. Civ. P. 9(a), 
defendants had standing to challenge the 
estate as a party plaintiff in the Leflore 
court tort action against defendants. Nat'l 
Heritage Realty, Inc. v. Estate of Boles, 
947 So. 2d 238 (Miss. 2006). 

Fictitious parties. 

In a products liability suit, pursuant to 
Miss. R. Civ. R 9(h) and 15(c)(2), a pa- 
tient's second amended complaint, which 
substituted a medical device manufac- 
turer for an unknown defendant, related 
back to the date of the original complaint 



naming a fictitious defendant because the 
patient made a reasonably diligent in- 
quiry into the identity of the manufac- 
turer where the suit was filed one day 
before the three-year limitations period in 
Miss. Code Ann. § 15-1-49 expired; less 
than three months elapsed between when 
the hospital that used the device on the 
patient supplied an erroneous manufac- 
turer's name and when the patient sought 
to substitute that manufacturer's name 
for the fictitious party designation; and 
the patient sought to substitute the cor- 
rect manufacturer for the first manufac- 
turer within three weeks after learning 
that the manufacturer had actually made 
the device. Scoggins v. Boston Sci. Corp., 
— F. Supp. 2d — , 2008 U.S. Dist. LEXIS 
35507 (N.D. Miss. Apr. 22, 2008). 

Circuit court erred in dismissing the 
entire action when dismissing the hospital 
in the beneficiaries' wrongful death action 
where, to dismiss the entire action, only 
when the identified parties were dis- 
missed and the complaint articulated 
claims against fictitious parties whose 
identity could be discovered, was to de- 
prive a plaintiff of this benefit. Long v. 
Mem'l Hosp. at Gulfport, 969 So. 2d 35 
(Miss. 2007). 

Where an estate mistakenly named a 
nursing home and personnel, and the es- 
tate failed to properly substitute any de- 
fendant for a fictitious party under Miss. 
R. Civ. P. 9(h), the amended complaint 
related back as to four of the defendants 
because they were the same owners and 
managers as the amended nursing home 
and had notice under Miss. R. Civ. P. 15(c), 
but the amended complaint did not relate 
back as to two defendants that did not 
have notice of the original complaint; 
therefore, those two defendant's were not 
timely served under Miss. R. Civ. P. 4(h). 
Bedford Health Props., LLC v. Estate of 
Wilhams, 946 So. 2d 335 (Miss. 2006). 

Patient's amended complaint did not 
relate back to the original complaint as 



54 



RULES OF CIVIL PROCEDURE 



Rule 9 



the patient was not diligent by waiting 
almost two years after filing the original 
complaint to identify a clinic and a doctor 
who had been named as fictitious parties. 
Joiner v. Phillips, 953 So. 2d 1123 (Miss. 
Ct. App. 2006). 

Summary judgment was properly 
awarded to a doctor in a patient's medical 
malpractice action where the patient's 
amended complaint, in which she added 
the doctor as a defendant, was not a 
proper Miss. R. Civ. P. 9(h) substitution 
because the amended complaint had not 
replaced a John Doe defendant with the 
doctor, and the amendment was made 
after the expiration of the statute of limi- 
tations. Santangelo v. Green, 920 So. 2d 
521 (Miss. Ct. App. 2006). 

Plaintiff is required to make a "reason- 
ably diligent inquiry" into the identity of 
an unknown defendant within the limita- 
tions period in order to substitute the 
defendant for a fictitious party under 
Miss. R. Civ. P. 9(h) and Miss. R. Civ. 
P 15(c)(2). Santangelo v. Green, 920 So. 2d 
521 (Miss. Ct. App. 2006). 

Amendment that changes the parties 
against whom the claim is asserted will 
relate back if within the statute of limita- 
tions period and the additional 120 days 
for service of process, the new party re- 
ceives such notice of the action as will 
prevent prejudice, and the new party 
knows or should have known that but for 
a mistake concerning the identity of the 
proper party, the action would be brought 
against the party. If the complaint uses 
fictitious names because the plaintiff is 
ignorant of the name of an opposing party 
and so alleges in his pleading, then an 
amendment to add the newly discovered 
actual party relates back to the date of the 
original pleading pursuant to Miss. R. Civ. 
P 9(h) and Miss. R. Civ. P 15(c)(2). Wilner 
V. White, 929 So. 2d 343 (Miss. Ct. App. 
2005), reversed by 929 So. 2d 315, 2006 
Miss. LEXIS 267 (Miss. 2006). 

The purpose of Miss. R. Civ. P 9(h) 
specifically, is to toll the statute of limita- 
tions when, in good faith, the plaintiff is 
unable to identify unknown defendants; 
this shield protects defendants and may 
be waived only by them. Rawson v. Jones, 
816 So. 2d 367 (Miss. 2001). 

Medical malpractice defendants were 
not Miss. R. Civ. P. 9(h) fictitious parties 



where plaintiff had known doctor was her 
child's only treating physician as early as 
the day of the child's death, she hired a 
lawyer within a week of the death for 
purposes of the lawsuit, she and her law- 
yer attended a death conference where the 
doctor was present, her deposition showed 
she discussed suing the doctor many 
times, her initial and amended complaints 
did not name him, she made only minor 
changes to her complaint after consulting 
an expert, and defendants were added 
after the statute of limitation had run. 
Rawson v. Jones, 816 So. 2d 367 (Miss. 
2001). 

Plaintiff's attempt to join new party 
after running of statute of limitations was 
denied; plaintiff improperly substituted 
one party for another, not for a fictitiously 
named defendant, and therefore could not 
avail herself of relation back provisions of 
rules. Doe v, Mississippi Blood Servs., 
Inc., 704 So. 2d 1016 (Miss. 1997), cert, 
denied, 523 U.S. 1078, 118 S. Ct. 1525, 
140 L. Ed. 2d 676 (1998). 

Fraud. 

Chancellor did not err in dismissing a 
nephew's lawsuit against his uncles for 
failure to state a claim upon which relief 
can be granted under Miss. R. Civ. P. 
12(b)(6) because the nephew failed to 
plead his claim of fraudulent conveyance 
with particularity; the nephew pleaded a 
fraudulent conveyance in general terms 
but failed to state with particularity what 
made the conveyance fraudulent. Walton 
V. Walton, 52 So. 3d 468 (Miss. Ct. App. 
2011). 

In a fraud action, the State met the 
specificity requirement of Miss. R. Civ. P. 
9(b) when it alleged a knowing, material, 
and false representation by pharmaceuti- 
cal manufacturers with the purpose of 
deceiving the State, and that the State's 
reliance on the representation proxi- 
mately caused the State's injury. State v. 
Bayer Corp., 32 So. 3d 496 (Miss. 2010). 

Decedent's grandson, who was not an 
heir at law, failed to set out in his com- 
plaint basic available information, such as 
the time of the alleged fraud on the part of 
the decedent's administrator; the allega- 
tion of fraud was not stated with the 
required particularity to overcome the 
two-year statute of limitations. 



55 



Rule 9 



MISSISSIPPI COURT RULES 



McClendon v. Hudson (In re Estate of 
Hudson), 962 So. 2d 90 (Miss. Ct. App. 
2007). 

Estate representatives' fraud claims 
brought against the administrator and 
the hcensee of a nursing home were dis- 
missed because the representatives sim- 
ply alleged the collective defendants (not 
each defendant specifically) misrepre- 
sented the qualitative and quantitative 
care and supervision they would receive, 
and made those misrepresentations to the 
representatives and their families; the 
complaint did not specify the date or loca- 
tions the allegedly fraudulent statements 
were made. Howard v. Estate of Harper, 
947 So. 2d 854 (Miss. 2006). 

When fraudulent concealment or other 
fraud-based allegations are asserted in a 
complaint, they are required to be pleaded 
with specificity and particularity under 
Miss. R. Civ. P. 9(b). State Indus, v. 
Hodges, 919 So. 2d 943 (Miss. 2006). 

Child was killed by a water heater's 
explosion; while minimal, the mother's 
and sister's pleadings in a wrongful death 
action were factually particular enough to 
allege fraudulent concealment and to sat- 
isfy Miss. R. Civ. P. 9(b), and the circuit 
court's decision to deny a motion to dis- 
miss was not an abuse of discretion. State 
Indus. V. Hodges, 919 So. 2d 943 (Miss. 
2006). 

Pursuant to Miss. R. Civ. P. 9(b), fraud 
must be pled with particularity. Hence, a 
court did not err in dismissing an in- 
sured's action against an insurer for fraud 
because there were no facts alleged by the 
insured to support a claim of fraud 
against the insurer. Ngo v. Centennial Ins. 
Co., 893 So. 2d 1076 (Miss. Ct. App. 2005). 

Where an insured alleged that three 
insurance agents misrepresented the ex- 
tent of coverage under two insurance pol- 
icies and the effect of such policies on 
Medicaid and Medicare, the insured failed 
to satisfy the specificity requirements of 
Fed. R. Civ. P 9(b) and Miss. R. Civ. P 9(b) 
because the insured's complaint alleged 
fraud claims only in broad, conclusory 
language. Williams v. Union Nat'l Life Ins. 
Co., — F. Supp. 2d — , 2003 U.S. Dist. 
LEXIS 26332 (S.D. Miss. Sept. 25, 2003), 
vacated by, remanded by 2004 U.S. Dist. 
LEXIS 27494 (S.D. Miss. Sept. 17, 2004). 



Two corporate defendants and seven 
individual defendants were parties to the 
suit and the subject complaint failed to 
specify which of the seven individual de- 
fendants made the allegedly fraudulent 
statements. Under the pleading stan- 
dards of Miss. R. Civ. P. 9(b) and Fed. R. 
Civ. P. 9(b) the court could not assume 
that each of the individual defendants 
made all of the allegedly fraudulent state- 
ments to the nursing home resident; and 
further, the complaint failed to allege the 
date on which, and location at which the 
allegedly fraudulent statements were 
made, thus the claim failed to meet the 
required pleading standards. Gray v. Bev- 
erly Enterprises-Mississippi, 261 F. Supp. 
2d 652 (S.D. Miss. 2003). 

Depositor's claim and reliance on a 
bank's fiduciary duty was unfounded in 
facts or law; there was no evidence that 
the bank perpetrated a fraud or intention- 
ally deceived the depositor regarding the 
contract for the certificates of deposit or 
the provision therein regarding setoff to 
satisfy a debt of a joint tenant on the 
certificates of deposit. Union Planters 
Nat'l Bank, N.A. v. Jetton, 856 So. 2d 674 
(Miss. Ct. App. 2003), cert, denied, 866 So. 
2d 473 (Miss. 2004). 

Purchasers' complaint covered all the 
elements of fraud and satisfied the plead- 
ing requirements of Miss. R. Civ. P. 9(b) 
where the complaint alleged that the in- 
surance agents each made a representa- 
tion about the nature of the policies in 
question that was not true, induced each 
purchaser to buy a policy that was delib- 
erately presented to each purchaser by 
each agent in full knowledge of its falsity, 
with the intent that the purchaser should 
buy a policy based on the false represen- 
tation; moreover, the complaint alleged 
that the purchasers did not know that the 
representation was false, and relied on 
presentations that were prepared by the 
insurance company and delivered by the 
agents, having the right to rely on the 
representations by the agents with appar- 
ent authority, and suffered financial in- 
jury as a direct result. Anderson v. Equi- 
table Life Assur. Soc'y of the United 
States, 248 F. Supp. 2d 584 (S.D. Miss. 
2003). 

Home buyers' fraud claims failed where 
they did not plead the claims with partic- 



56 



RULES OF CIVIL PROCEDURE 



Rule 9 



ularity, because the only evidence of fraud 
that they set forth was a copy of the sales 
contract which they claimed had no repair 
disclosures, but the sales contract identi- 
fied several areas that had to be repaired 
as a condition of the sale, and there was 
no evidence in the record of "willful or 
intentional" misconduct by the sellers. 
Mitchell V. Nelson, 830 So. 2d 635 (Miss. 
2002). 

Deciding feature was that the mother 
and daughter who defaulted on a bank 
note and security agreement failed to 
plead fraud with the requisite specificity, 
and any allegations of fraud were unsup- 
ported by the evidence; no agreements, 
other than a reaffirmation agreement filed 
in bankruptcy, were executed, and the 
evidence did not support the claim that 
the mother and daughter were fraudu- 
lently induced into reaffirming the debt to 
the bank. Burgess v. BankPlus, 830 So. 2d 
1223 (Miss. 2002). 

In an action arising from a residential 
real property transaction, the plaintiff 
buyer's complaint was insufficient to state 
a cause of action for fraudulent misrepre- 
sentation by the sellers' agent where the 
complaint merely alleged that the agent 
made misrepresentations to her. Powell v. 
Cohen Realty, Inc., 803 So. 2d 1186 (Miss. 
Ct. App. 1999). 

Complaint alleging fraudulent induce- 
ment to enter into and continue distribu- 
torship, while not artfully pled, alleged 
fraud sufficiently to meet standards pred- 
icated under subdivision (b) of this rule. 
Allen V. Mac Tools, Inc., 671 So. 2d 636 
(Miss. 1996). 

Plaintiff's averments of fraud were 
more than a mere summary recitation of 
elements, and were asserted with suffi- 
cient particularity to satisfy subdivision 
(b) of this rule. Nichols v. Tri-State Brick 
& Tile Co., 608 So. 2d 324 (Miss. 1992). 

Petitioner's motion for leave to amend 
should have been allowed, where motion 
alleged fraud perpetrated upon court by 
administratrix of estate; if an allegation of 
fraud is sufficiently pled it should be 
heard, and thirty days leave to amend is 
to be granted when court sustains a mo- 
tion to dismiss. Smith v. Estate of King, 
501 So. 2d 1120 (Miss. 1987). 



Malice. 

Summary judgment was granted to a 
creditor in an action under the Fair Credit 
Reporting Act, 15 U.S.C. § 1681 et seq., 
because a claim of harassment by two 
debtors was preempted under 15 U.S.C. 
§ 1681h(e); an exception to this did not 
apply since the pleadings did not contain 
an allegation of malice. Harmon v. Re- 
gions Bank, 961 So. 2d 693 (Miss. 2007). 

Mistake. 

Finding in favor of one brother and his 
wife in a boundary dispute action was 
proper, where nothing in any of the plead- 
ings was stated generally, much less with 
particularity, concerning mistake or the 
circumstances of such a mistake, that 
would support reformation, Miss. R. Civ. 
P. 9(b). Estate of DeLoach v. DeLoach, 873 
So. 2d 146 (Miss. Ct. App. 2004). 

Names of defendants. 

In a medical malpractice/wrongful 
death claim in which plaintiff's first two 
complaints asserted claims against John 
Does 1-5, the third complaint, which sub- 
stituted the names of actual physicians for 
the John Does, did not relate back to the 
original complaint because plaintiff failed 
to exercise due diligence to discover the 
identities of the John Doe physicians 
where she received records pertaining to 
the patient's treatment prior to filing suit. 
Price V. Clark, 21 So. 3d 509 (Miss. 2009). 

Addition of defendants' names in plain- 
tiff's amended complaint pursuant to 
Miss. R. Civ. P. 9(h) without the court's 
leave was improper because the new 
names were not substituted for fictitious 
parties, but rather were those of new 
defendants whose addition required court 
approval under Miss. R. Civ. P. 21. Veal v. 
J. P. Morgan Trust Co., N.A., 955 So. 2d 
843 (Miss. 2007). 

Although Miss. R. Civ. P. 9(h) pleadings 
are not considered amendments changing 
a party against whom a claim was as- 
serted and are allowed under Miss. R. Civ. 
P. 15(c) to relate back to the date of the 
original pleading, the rule did not apply to 
a patient's malpractice case because, in 
order for Rule 9(h)to apply, there had to be 
a substitution of a true party name for a 
fictitious one; the patient did not substi- 
tute the doctor's name for a "John Doe," 



57 



Rule 10 MISSISSIPPI COURT RULES 

but simply added his name. Wilner v. 10, and 11. 3M Co. v. Hinton, 910 So. 2d 

White, 929 So. 2d 315 (Miss. 2006). 526 (Miss. 2005). 

In a suit for alleged asbestos-related 

injuries, the trial court's order granting Special damages. 

plaintiffs' proposed case management or- Trial court in replevin action erred in 

der was reversed, where plaintiffs submit- submitting issue of defendant's conse- 

ted pleadings which did not, at the very quential damages to jury, where defen- 

least, include the name or names of the dant failed to sufficiently prove his conse- 

defendants against whom each plaintiff quential damages, and failed to comply 

alleged a claim, the time and location of with subdivision (g) of this rule by not 

exposure, and the medical condition sufficiently pleading his consequential 

caused by such exposure; this was a clear damages. Puckett Mach. Co. v. Edwards, 

failure to comply with Miss. R. Civ. P. 8, 9, 641 So. 2d 29 (Miss. 1994). 

RESEARCH REFERENCES 

Law Reviews — Taming an Elephant: the Impact of Mississippi Tort Reforms, 26 
A Closer Look at Mass Tort Screening and Miss. C. L. Rev. 253, 2006/2007. 

Rule 10. Form of pleadings. 

(a) Caption; names of parties. Every pleading shall contain a caption setting 
forth the name of the court, the title of the action, the file number, and a 
designation as in Rule 7(a). In the complaint the title of the action shall include 
the names of all the parties, but in other pleadings it is sufficient to state the 
name of the first party on each side with an appropriate indication of other 
parties. 

(b) Paragraphs; separate statement. The first paragraph of a claim for relief 
shall contain the names and, if known, the addresses of all the parties. All 
averments of claim or defense shall be made in numbered paragraphs, the 
contents of each of which shall be limited as far as practicable to a statement 
of a single set of circumstances; and the paragraph may be referred to by 
number in all succeeding pleadings. Each claim founded upon a separate 
transaction or occurrence and each defense other than denials shall be stated 
in a separate count or defense whenever a separation facilitates the clear 
presentation of the matters set forth. 

(c) Adoption by reference; exhibits. Statements in a pleading may be adopted 
by reference in a different part of the same pleading or in another pleading or 
in any motion. A copy of any written instrument which is an exhibit to a 
pleading is a part thereof for all purposes. 

(d) Copy must [should] be attached. When any claim or defense is founded on 
an account or other written instrument, a copy thereof should be attached to or 
filed with the pleading unless sufficient justification for its omission is stated 
in the pleading. (Amended effective April 13, 2000.) 

ADVISORY COMMITTEE HISTORICAL NOTE 

Effective April 13, 2000, Rule 10(d) was that documents on which a claim or de- 
amended to suggest, rather than require fense is based be attached to a pleading. 

58 



RULES OF CIVIL PROCEDURE 



Rule 10 



So. 2d (West Miss. Cas. 2000). 



COMMENT 



Rule 10(a) is substantially the same as 
current Mississippi practice. See Miss. 
Code Ann. § 11-7-57(1972). 

The requirement in Rule 10(b) that 
averments be made in numbered para- 
graphs is similar to Mississippi Chancery 
Court Rule 10. MRCP Rule 10(b) requires 
claims to be presented in separate counts 
only when two conditions are met: the 
claims must be founded upon separate 
transactions or occurrences, and a separa- 
tion must facilitate the clear presentation 
of the matters set forth. Thus, the pleader 
cannot be required to use separate counts 
where his claims arise from a single trans- 
action or occurrence. Even where the 
claims arise from separate transactions or 
occurrences, the test as to whether sepa- 
rate counts must be used is functional 
rather than conceptual; separate counts 
are required if they facilitate the clear 
presentation of the matters set forth. Fail- 
ure to comply with the requirements of 
Rule 10(b) is not ground for dismissal of 
the complaint or striking of the answer, 
but the defect may be ordered cured by 
motion. See 5 Wright & Miller, Federal 
Practice and Procedure, Civil § 1322 
(1969). 

Rule 10(c) permits incorporation of por- 
tions of pleadings by reference to later 
portions of the same pleading or in subse- 
quent pleadings or motions. This is partic- 
ularly helpful where a factual averment 
has bearing in subsequent allegations of a 
pleading. Further, when pleadings are 
amended, prior phases of an earlier plead- 
ing not affected by the proposed amend- 
ment can be incorporated by reference. 
This practice functions most successfully 
when the requirement of numbered para- 
graphs, Rule 10(b), has been observed. 

Defective incorporation by reference 
may be raised by a motion to strike, a 
motion for a more definite statement, or a 
motion to dismiss for failure to state a 
claim upon which relief can be granted. 
The court can also remedy the defect on its 
own motion. See Oppenheimer v. F. J. 



Young &Co.,3 F.R.D. 220 (D.C.N.Y.1943); 
5 Wright & Miller, supra, § 1327. 

The original Rule 10(d) provided that 
"[w]hen any claim or defense is founded on 
an account or other written instrument, a 
copy thereof must be attached to or filed 
with the pleading unless sufficient justifi- 
cation for its omission is stated in the 
pleading." That subdivision, which does 
not appear in Federal Rule 10 was in- 
cluded in the original MRCP 10 to con- 
tinue the prior Mississippi practice. How- 
ever, the Mississippi Supreme Court 
criticized the mandate of subdivision 10(d) 
as being "at odds with the structure and 
philosophy of the Rules." Gilchrist Ma- 
chine Co. V. Ross, 493 So. 2d 1288, 1292 
n.l (Miss. 1986). It required the attach- 
ment of foundational documents, even if 
the pleading stated a sufficient claim or 
defense under general pleading stan- 
dards, and indeed even if the document 
was voluminous and readily available to 
all sides. The Court by interpretation re- 
moved much of the subdivision's manda- 
tory effect. See Edwards v. Beasley, 577 
So. 2d 384 (Miss. 1991) (trial judge com- 
mitted reversible error by failing to per- 
mit the defendant to amend the answer at 
trial to attach two agreements on which a 
defense was based); Gilchrist, supra (fail- 
ure to attach to the complaint invoices on 
which the claim was based did not render 
the invoices inadmissible at trial); Bryant, 
Inc. V. Walters, 493 So. 2d 933, 938 (Miss. 
1986) (failure to comply with 10(d) did not 
void a default jdugment). Consequently, 
subdivision 10(d) was amended to its pres- 
ent form, which states that foundational 
documents should be attached, unless a 
reason for the failure to do so is stated. 
Thus, it remains good practice normally to 
attach such documents as part of a clear 
statement of a claim or defense. If, How- 
ever, a foundational document is not at- 
tached to an otherwise sufficient pleading, 
the document may be obtained through 
discovery. 

[Comment amended effective April 13, 
2000.] 



59 



Rule 11 



MISSISSIPPI COURT RULES 



JUDICIAL DECISIONS 



Attachments. 
Parties to be listed. 
Separate counts. 

Attachments. 

A condemnor was not required to attach 
to its petition a corporate resolution au- 
thorizing a taking, and the failure to do so 
did not merit dismissal of the case. Ford v. 
Destin Pipeline Co., 809 So. 2d 573 (Miss. 
2000). 

The court reversed the judgment of dis- 
missal of the plaintiff's claim for breach of 
contract to allow him the opportunity to 
discover if any contracts did in fact exist, 
and if so, whether such contracts estab- 
lished him as an intended third-party 
beneficiary. The plaintiff was not required 
to attach a copy of the contract to the 
pleadings. Donald v. Amoco Prod. Co., 735 
So. 2d 161 (Miss. 1999). 

Defendant in partnership dispute 
should have been allowed to amend his 
pleadings to attach copies of pertinent 
agreements to his answer and counter- 
claim, where plaintiff signed, was a party 
to, and was familiar with terms of the 
agreements, and his argument that defen- 
dant was tr3ring to ambush him was with- 
out merit. Edwards v. Beasley, 577 So. 2d 
384 (Miss. 1991). 

Since defendant registered no objection 
to complaint prior to hearing on summary 
judgment motion, it waived any advan- 
tage it might gain from plaintiff's failure 
to provide affidavit attesting to accuracy 
of documents attached to complaint. Key 
Constructors, Inc. v. H «& M Gas Co., 537 
So. 2d 1318 (Miss. 1989). 

Although complaint failed to comply 
with this rule since invoices were not 
attached, defendant's failure to assert vi- 
olation by proper motion or otherwise. 



reasonably in advance of trial, operated as 
a waiver of its rights under this rule. 
Gilchrist Machinery Co. v. Ross, 493 So. 

2d 1288 (Miss. 1986). 

Parties to be listed. 

In a suit for alleged asbestos-related 
injuries, the trial court's order granting 
plaintiffs' proposed case management or- 
der was reversed, where plaintiffs submit- 
ted pleadings which did not, at the very 
least, include the name or names of the 
defendants against whom each plaintiff 
alleged a claim, the time and location of 
exposure, and the medical condition 
caused by such exposure; this was a clear 
failure to comply with Miss. R. Civ. P. 8, 9, 
10, and 11. 3M Co. v. Hinton, 910 So. 2d 
526 (Miss. 2005). 

Trial court did not err in excluding from 
the courtroom certain witnesses after the 
sequestration rule. Miss. R. Evid. 615, 
was invoked because the 500 names of the 
other witnesses were not originally listed 
as parties on the original complaint pur- 
suant to Miss. R. Civ. P. 10(a), and thus 
they were not considered parties. 
Prestridge v. City of Petal, 841 So. 2d 1048 
(Miss. 2003). 

Separate counts. 

In an action arising from a motor vehi- 
cle accident, the defendant was not enti- 
tled to the exclusion of evidence based on 
the plaintiffs' allegation that the defen- 
dant exited his vehicle after the collision 
and pointed a gun at the plaintiffs in a 
dangerous and threatening manner since 
the gun-brandishing incident was a part 
of the totality of circumstances surround- 
ing the collision, rather than a separate 
occurrence. Sims v. Collins, 762 So. 2d 785 
(Miss. Ct. App. 2000). 



RESEARCH REFERENCES 



Law Reviews — Taming an Elephant: 
A Closer Look at Mass Tort Screening and 



the Impact of Mississippi Tort Reforms, 26 
Miss. C. L. Rev. 253, 2006/2007. 



Rule 11. Signing of pleadings and motions. 

(a) Signature required. Every pleading or motion of a party represented by 
an attorney shall be signed by at least one attorney of record in that attorney's 



60 



RULES OF CIVIL PROCEDURE Rule 11 

individual name, whose address shall be stated. A party who is not represented 
by an attorney shall sign that party's pleading or motion and state the party's 
address. Except when otherwise specifically provided by rule or statute, 
pleadings need not be verified or accompanied by affidavit. The rule in equity 
that the averments of an answer under oath rnust be overcome by the 
testimony of two witnesses or of one witness sustained by corroborating 
circumstances is abolished. The signature of an attorney constitutes a certif- 
icate that the attorney has read the pleading or motion; that to the best of the 
attorney's knowledge, information, and belief there is good ground to support 
it; and that it is not interposed for delay. The signature of an attorney who is 
not regularly admitted to practice in Mississippi, except on a verified applica- 
tion for admission pro hac vice, shall further constitute a certificate by the 
attorney that the foreign attorney has been admitted in the case in accordance 
with the requirements and limitations of Rule 46(b) of the Mississippi Rules of 
Appellate Procedure. 

(b) Sanctions. If a pleading or motion is not signed or is signed with intent 
to defeat the purpose of this rule, it may be stricken as sham and false, and the 
action may proceed as though the pleading or motion had not been served. For 
wilful violation of this rule an attorney may be subjected to appropriate 
disciplinary action. Similar action may be taken if scandalous or indecent 
matter is inserted. If any party files a motion or pleading which, in the opinion 
of the court, is frivolous or is filed for the purpose of harassment or delay, the 
court may order such a party, or his attorney, or both, to pay to the opposing 
party or parties the reasonable expenses incurred by such other parties and by 
their attorneys, including reasonable attorneys' fees. (Amended effective 
March 13, 1991; amended effective January 16, 2003.) 

ADVISORY COMMITTEE HISTORICAL NOTE 

Effective March 13, 1991, Rule 11(b) against a party, his attorney or both. 574- 
was amended to provide for sanctions 576 So. 2d XXI (West Miss. Gas. 1991). 

COMMENT 

The purposes of Rule 11 are to require in Rule 11," meaning only when counsel 

that all pleadings, motions, and papers in can in good faith fairly deny all the aver- 

an action be signed by at least one attor- ments in the adverse pleadings should he 

ney of record and to eliminate the require- do so. Also, a signed pleading may be 

ment of verified pleadings. Only the orig- introduced into evidence in another action 

inal paper must be signed, although by an adverse party as proof of the facts 

copies served on the adverse attorneys alleged therein. 

should indicate by whom the original was Verification will be the exception and 

signed. Counsel's office address should ap- not the rule to pleading in Mississippi; 

pear on all pleadings and other papers, this is a break from past practice. See 

This procedure accords with Miss. Code Miss. Code Ann. §§ 11-5-21; 11-5-29; 11-5- 

Ann. §§ 11-5-9 and 11-7-91 (1972). 31; and 11-5-33 (1972). No pleading need 

Good faith and professional responsibil- be verified or accompanied by affidavit 

ity are the bases of Rule 11. Rule 8(b), for unless there is a specific provision to that 

instance, authorizes the use of a general effect in rule or statute. See Rules 27 (a) 

denial "subject to the obligations set forth and 65. 

61 



Rule 11 



MISSISSIPPI COURT RULES 



Sham pleadings and willful violations 
are disciplined consistently with past Mis- 
sissippi procedure. See Sherrill v. Stewart, 
197 Miss. 880, 21 So.2d 11 (1945). 

The final sentence of Rule 11(b) is in- 
tended to ensure that the trial court has 
sufficient power to deal forcefully and ef- 
fectively with parties or attorneys who 



may misuse the liberal, notice pleadings 
system effectuated by these rules. An 
objective standard is employed in deter- 
mining whether Rule 11 sanctions should 
be imposed. See, Tricon Metals & Services, 
Inc. V. Topp, 537 So.2d 1331 (Miss.1989). 
[Amended effective March 13, 1991.] 



JUDICIAL DECISIONS 



In general. 

Construction. 

Frivolousness. 

Particular cases. 

Review. 

Sanctions. 

In general. 

Where plaintiff's counsel commenced a 
personal injury suit against defendant 
railroad company one year and eight 
months after plaintiff's demise, the law- 
suit amounted to a nullity; because the 
railroad company had a complete defense 
based upon the death of plaintiff some 20 
months earlier, the lawsuit was frivolous, 
and an award of attorney fees was proper 
under Miss. R. Civ. R 11 and Miss. Code 
Ann. § 11-55-5. 111. Cent. R.R. Co. v. 
Broussard, — So. 2d — , 2008 Miss. App. 
LEXIS 589 (Miss. Ct. App. Sept. 30, 2008), 
opinion withdrawn by, substituted opinion 
at 19 So. 3d 821, 2009 Miss. App. LEXIS 
745 (Miss. Ct. App. 2009). 

Complaints should not be filed in mat- 
ters where plaintiffs intend to find out in 
discovery whether or not, and against 
whom, they have a cause of action, and 
absent exigent circumstances, plaintiffs' 
counsel should not file a complaint until 
sufficient information is obtained, and 
plaintiffs' counsel believes in good faith 
that each plaintiff has an appropriate 
cause of action to assert against a defen- 
dant in the jurisdiction where the com- 
plaint is to be filed; to do otherwise is an 
abuse of the system, and is sanctionable 
under Miss. R. Civ. R 11. Harold's Auto 
Parts, Inc. v. Mangialardi, 889 So. 2d 493 
(Miss. 2004). 

Rule did not apply to a petition to re- 
turn forfeited property and did not give an 
attorney the power to substitute his sig- 
nature for that of his client. Shannon v. N. 



Miss. Narcotics Unit, 815 So. 2d 1255 
(Miss. Ct. App. 2002). 

Pursuant to its inherent authority, cir- 
cuit court had power to impose monetary 
sanctions against attorney as well as his 
cHents. Bean v. Broussard, 587 So. 2d 908 
(Miss. 1991). 

Construction. 

For purposes of this rule, a claim is 
frivolous only when, objectively speaking, 
the pleader or movant has no hope of 
success. Scruggs v. Saterfiel, 693 So. 2d 
924 (Miss. 1997). 

This rule must be read and interpreted 
in light of purpose implicit in it: one of 
general deterrence of frivolous filings. 
Tricon Metals & Services, Inc. v. Topp, 537 
So. 2d 1331 (Miss. 1989). 

Trial court has authority to act sua 
sponte under this rule, and ought to exer- 
cise that authority against backdrop of its 
inherent authority to impose sanctions 
upon those who abuse the judicial process. 
TVicon Metals & Services, Inc. v. Topp, 537 
So. 2d 1331 (Miss. 1989). 

Frivolousness. 

Record contained sufficient evidence to 
support the chancellor's award of attor- 
ney's fees in the amount of $ 800 in favor 
of a brother because the chancellor set 
forth his calculations regarding attorney's 
fees, reviewed the time sheets the broth- 
er's attorney submitted, and evaluated 
the length of the attorney's practice, as 
well as his skill and expertise, in deter- 
mining an hourly rate; the chancellor did 
not abuse his discretion in finding Miss. R. 
Civ. P. 11 sanctions appropriate based 
upon his finding that a sister filed a friv- 
olous counterclaim against the brother. 
Buckalew v. Buccluch (In re Buckalew), 62 
So. 3d 460 (Miss. Ct. App. 2011). 



62 



RULES OF CIVIL PROCEDURE 



Rule 11 



Chancery court did not abuse its discre- 
tion in imposing sanctions against a 
nephew on the ground that he instituted a 
second frivolous lawsuit against his 
uncles because in the first lawsuit that 
was dismissed for failure to state a claim, 
the nephew sued the uncles and requested 
the chancellor to set aside a deed that 
conveyed an interest in one tract of land to 
one of the uncles, and that tract of land 
was also one of the six tracts of land that 
was conveyed to the uncles in another 
deed; the nephew failed to plead his claim 
of fraudulent conveyance with particular- 
ity, and thus, there was no way that he 
could prove the claim, making the claim 
frivolous. Walton v. Walton, 52 So. 3d 468 
(Miss. Ct. App. 2011). 

Trial court did not err in ordering sanc- 
tions in a citizen's action against a city, a 
municipal court, and a municipal court 
judge pursuant to the Mississippi Litiga- 
tion Accountability Act and Miss. R. Civ. P. 
11(b) because the record clearly supported 
a finding that the citizen pursued a frivo- 
lous collateral action in trial court and 
that the sanctions were appropriate; in 
granting sanctions of attorney fees 
against the citizen pursuant to the factors 
set out in the Litigation Accountability 
Act, Miss. Code Ann. § 11-55-7, and Rule 
11(b), the trial court found-that the action 
was a frivolous action filed without sub- 
stantial notification in order to harass the 
city, municipal court, and municipal court 
judge. Prewitt v. City of Oxford, 44 So. 3d 
922 (Miss. 2010), writ of certiorari denied 
by 2010 Miss. LEXIS 274 (Miss. June 3, 
2010), writ of certiorari denied by 131 S. 
Ct. 294, 178 L. Ed. 2d 142, 2010 U.S. 
LEXIS 6224, 79 U.S.L.W 3201 (U.S. 
2010). 

Refusal to award attorney fees to the 
employer after the deceased employee's 
personal-injury suit was dismissed was 
proper under Miss. R. Civ. P. 11 and the 
Litigation Accountability Act of 1988, 
Miss. Code Ann. §§ 11-55-1 to 11-55-15, 
because, although the filing of a claim for 
a deceased person was frivolous since the 
claim had no hope of success, the decision 
to award sanctions was within the discre- 
tion of the trial court and the trial court 
was within its discretion to deny sanc- 
tions. The deceased employee's counsel 



filed the lawsuit and tried to follow up on 
it, and the employee was alive when it was 
originally filed; when counsel was unable 
to contact the employee, counsel pursued 
the lawsuit on the employee's behalf in 
order to avoid being barred by the statute 
of limitations. 111. Cent. R.R. v. Broussard, 
19 So. 3d 821 (Miss. Ct. App. 2009). 

Chancellor's decision not to award at- 
torney's fees to the landowner was not an 
abuse of discretion where there was no 
evidence that the county filed the title 
claim in bad faith or without justification; 
to the contrary, the county presented am- 
ple evidence to support its claim. Knight v. 
Covington County 27 So. 3d 1163 (Miss. 
Ct. App. Apr. 21, 2009), writ of certiorari 
dismissed by 2010 Miss. LEXIS 76 (Miss. 
Feb. 18, 2010). 

Trial court did not err in denying a car 
purchaser's Miss. R. Civ. P. 60(b)(6) mo- 
tion for relief from judgment and finding 
his breach of contract suit against a car 
dealership was frivolous, where the dealer 
prepared a cash worksheet, which was not 
a contract, and the purchaser left with it 
stating he would return with the purchase 
money; he returned without the money 
and, without offering any payment, de- 
manded the car be released to him, and he 
then filed the instant suit because the 
dealer refused to release the car to him. 
Guinn v. Wilkerson, 963 So. 2d 555 (Miss. 
Ct. App. 2006), writ of certiorari denied en 
banc by 962 So. 2d 38, 2007 Miss. LEXIS 
490 (Miss. 2007), writ of certiorari denied 
by 553 U.S. 1022, 128 S. Ct. 2088, 170 L. 
Ed. 2d 823, 2008 U.S. LEXIS 3738, 76 
U.S.L.W. 3582 (2008). 

In a wrongful death action filed by the 
parents of two passengers who were killed 
during a police pursuit of the driver of a 
stolen vehicle, the parents were ordered to 
pay the county's attorney fees that were 
incurred in defending the action on appeal 
because the appeal was frivolous, as they 
had no hope of success against the county. 
McCoy V. City of Florence, 949 So. 2d 69 
(Miss. Ct. App. 2006), writ of certiorari 
denied by 949 So. 2d 37, 2007 Miss. LEXIS 
113 (Miss. 2007). 

Refusal to award attorney's fees to the 
mother in a child custody action was 
proper pursuant to the Mississippi Litiga- 
tion Accountability Act, Miss. Code Ann. 



63 



Rule 11 



MISSISSIPPI COURT RULES 



§ 11-55-1 et seq., because the father's 
claim for custody was not frivolous pursu- 
ant Miss. R. Civ. P. 11. He was and re- 
mained the legal father of the children 
because the parties voluntarily signed an 
acknowledgment of paternity knowing 
that the father was not the biological 
father of the children. Adcock v. Van Nor- 
man, 918 So. 2d 747 (Miss. Ct. App. 2005), 
affirmed in part and reversed in part by, 
remanded by 917 So. 2d 86, 2005 Miss. 
LEXIS 830 (Miss. 2005). 

Where a paternal grandmother sought 
and was granted temporary custody of her 
minor grandchild through an ex parte 
proceeding based on claims that the child 
was sexually abused by the attorney of the 
child's mother, the trial court did not 
abuse its discretion in denjdng the moth- 
er's claims for attorney's fees under Miss. 
R. Civ. R 11 for filing a frivolous claim. E. 
J. M. V. A. J. M., 846 So. 2d 289 (Miss. Ct. 
App. 2003). 

The court did not abuse its discretion in 
determining that a complaint alleging in- 
juries arising from a 12-car pileup was 
frivolous because the plaintiff sued an 
employer based upon no greater knowl- 
edge than the fact that the alleged tort- 
feasor was employed by the employer. 
Eatman v. City of Moss Point, 809 So. 2d 
591 (Miss. 2000). 

A prisoner's action asserting that his 
constitutional rights were violated when 
he was transferred from a state prison to a 
private prison facility over his objection 
was properly determined to be frivolous 
where the court found that the prisoner 
had 20 years' experience as a writwriter 
and that he was capable of distinguishing 
a meritorious claim from a frivolous one, 
and the petition failed to cite any consti- 
tutional guarantee or right which had 
been violated. Tubwell v. Grant, 760 So. 2d 
687 (Miss. 2000). 

Since there was no legitimate reason for 
naming attorneys of mass tort plaintiff's 
as parties in bill of peace, there could have 
been no hope of success nor any viable 
claim with regard to those attorneys, and 
there also could have been no hope of 
success as to those parties not served, and 
therefore the action was frivolous and 
sanctions were appropriate. Leaf River 
Forest Prods., Inc. v. Deakle, 661 So. 2d 
188 (Miss. 1995). 



Where depositions yielded no proof of 
alleged conspiracy, plaintiff's pleadings 
and motions were frivolous and sanctions 
were correctly imposed, since a reasonable 
person would not have had hope of success 
in pursuing the suit. Roussel v. Hutton, 
638 So. 2d 1305 (Miss. 1994). 

This rule did not place continuing duty 
on attorney to immediately abandon claim 
if it later appeared frivolous, and com- 
plaint was not frivolous at time it was 
filed, where attorney believed that case 
had merit based on information that he 
had, and that belief was not unreasonable 
when objectively viewed. Bean v. Brous- 
sard, 587 So. 2d 908 (Miss. 1991). 

Although plaintiff had a weak case, it 
was hardly so devoid of any claim of 
liability as to be frivolous, and moreover 
judge had refused to grant defendant a 
directed verdict at the close of plaintiff's 
case, and therefore circuit judge erred in 
assessing sanctions against plaintiff for 
pursuing a frivolous lawsuit. Nichols v. 
Munn, 565 So. 2d 1132 (Miss. 1990). 

Because there was a very real dispute 
over status of school districts in question, 
and circuit court's own order stated that 
Mississippi law was unclear, plaintiff's 
pleading could not be called frivolous and 
court abused its discretion in imposing 
sanctions. Greenville Pub. Sch. Dist. v. 
Western Line Consol. Sch. Dist., 575 So. 
2d 956 (Miss. 1990), cert, denied, 503 U.S. 
950, 112 S. Ct. 1512, 117 L. Ed. 2d 649 
(1992). 

Filing is that which triggers the possi- 
bility of sanctions; parties and attorneys 
do not have a continuing duty to monitor 
their pleadings and motions and abandon 
them if subsequent events or information 
coming to their attention suggest that a 
claim or defense is frivolous. Nationwide 
Mut. Ins. Co. V. Evans, 553 So. 2d 1117 
(Miss. 1989). 

Particular cases. 

Bona fide purchaser (BFP) for value's 
claim for attorneys fees under Miss. R. 
Civ. P. 11(b) was properly denied as while 
the former owner's claim was weak, it was 
not frivolous, and there was no evidence 
that the claim was intended to harass the 
BFP. Tenn. Props. Inc. v. Gillentine, 66 So. 
3d 695 (Miss. Ct. App. 2011). 



64 



RULES OF CIVIL PROCEDURE 



Rule 11 



Complaint by a Mississippi resident 
against an insurer arising out of unin- 
sured motorist provisions of a policy was 
properly dismissed as time barred; the 
original complaint was properly refused 
by the circuit court clerk because it was 
signed by a Louisiana attorney who was 
not licensed to practice in Mississippi, and 
who had not been admitted pro hac vice. 
Mitchell V. Progressive Ins. Co., 965 So. 2d 
679 (Miss. 2007). 

In a breach of contract case between a 
rehabilitative services company, a nursing 
home, and their two owners, the services 
company was not entitled to recover attor- 
ney fees for the defense of a withdrawn 
counterclaim under Miss. R. Civ. P. 11(b) 
and Miss. Code Ann. § 11-55-5(1) be- 
cause, even though the counterclaim was 
weak, there was no showing that it lacked 
any hope of success. Cain v. Cain, 967 So. 
2d 654 (Miss. Ct. App. 2007). 

In a suit for alleged asbestos-related 
injuries, the trial court's order granting 
plaintiffs' proposed case management or- 
der was reversed, where plaintiffs submit- 
ted pleadings which did not, at the very 
least, include the name or names of the 
defendants against whom each plaintiff 
alleged a claim, the time and location of 
exposure, and the medical condition 
caused by such exposure; this was a clear 
failure to comply with Miss. R. Civ. P. 8, 9, 
10, and 11. 3M Co. v. Hinton, 910 So. 2d 
526 (Miss. 2005). 

Distinction addressed by the trial court 
in granting the landowner's motion to 
dismiss his trespass and unjust enrich- 
ment action, was that the landowner's 
claims were dismissed with prejudice 
rather than without prejudice. The trial 
court determined the dismissal with prej- 
udice to be a final adjudication of the 
issues, and therefore, the telecommunica- 
tions company (originally named as a de- 
fendant along with the Mississippi Power 
Company), obtained a favorable final ad- 
judication on the merits of the case; how- 
ever, the trial court was in the best posi- 
tion to consider the telecommunication 
company's ore tenus motion for attorney's 
fees and costs and did not abuse its dis- 
cretion in denying same where it found 
the circumstances may have been un- 
usual, but that they were not exceptional. 



Miss. Power Co. v. Hanson, 905 So. 2d 547 
(Miss. 2005). 

Executor's misrepresentation of the 
true facts to the chancery court (his broth- 
er's known claims of ownership to the 
livestock and the evidence of a valid inter 
vivos gift by the decedent), amounted to 
"improper conduct" under Miss. Code Ann. 
§ 91-7-85, and liis removal as executor of 
the estate was proper. Further, the chan- 
cellor properly found that the executor 
(and his attorney), violated the Missis- 
sippi Litigation Accountability Act, Miss. 
Code Ann. §§ 11-55-1 to 11-55-15 (Rev. 
2002), and Miss. R. Civ. P. 11(b), by their 
misrepresentations in obtaining an order 
from the chancery court, permitting them 
to retrieve the subject livestock, and the 
chancellor's award of attorney's fees and 
expenses was proper. In re Estate of 
Ladner v. Ladner, 909 So. 2d 1051 (Miss. 
— 2004). 

Under Miss. R. Civ. P. 5(d), only proof of 
service of discovery responses, and not the 
responses themselves, need be filed with 
the court, and a plaintiff's motion for 
judgment based on the defendant's failure 
to file discovery responses with the court 
was thus clearly frivolous and justified 
sanctions under Miss. R. Civ. P. 11(b). 
Mcintosh V. Victoria Corp., 877 So. 2d 519 
(Miss. Ct. App. 2004), cert, denied, 878 So. 
2d 67 (Miss. 2004). 

Although the wife manipulated the ju- 
dicial system by filing for divorce first in 
one county, and then, dissatisfied with the 
results, in a second county, the latter court 
of which incorporated the former court's 
orders on child custody and property divi- 
sion, because the divorce judgment was 
void pursuant to the jurisdiction and 
venue requirements of Miss. Code Ann. 
§ 93-5-11, the trial court was also without 
jurisdiction to enter orders for contempt 
and attorney fees, although a hearing on 
sanctions was called for. Roberts v. Rob- 
erts, 866 So. 2d 474 (Miss. Ct. App. 2003), 
cert, denied, 866 So. 2d 473 (Miss. 2004). 

Though the circuit court's ruling ap- 
proving the Mississippi Department of 
Corrections' (MDOC) suspension of an em- 
ployee was reversed on appeal, the appel- 
late court declined to award the employee 
attorney's fees as a sanction under Miss. 
R. Civ. P. 11(b) because it found, given the 



65 



Rule 11 



MISSISSIPPI COURT RULES 



nature and course of the proceedings, 
that, even though ultimately lost, 
MDOC's appeal was not subject to sanc- 
tions. Hemba v. Miss. Dep't of Corn, 848 
So. 2d 909 (Miss. Ct. App. 2003). 

In wife's contempt action against former 
husband, the wife presented no evidence 
that the husband issued the 23 checks for 
child support, which the wife did not pres- 
ent to the bank for months, with fraudu- 
lent intent. Rather, the record showed the 
wife rebuffed the husband's efforts to 
make good on the checks, and wanted to 
file yet another complaint causing the 
husband yet more financial problems and 
emotional distress, and the wife was prop- 
erly held in contempt. Broome v. Broome, 
832 So. 2d 1247 (Miss. Ct. App. 2002). 

Though the Mississippi Life and Health 
Guaranty Association "stretched the lim- 
its" in various defenses it raised to defeat 
a trustee's claim for coverage for sums lost 
under an annuity contract with an insol- 
vent insurer, the circuit court did not 
abuse its discretion by denying the trust- 
ee's request for attorney's fees. Bank of 
Miss. V. Miss. Life & Health Ins. Guar. 
Ass'n, 850 So. 2d 127 (Miss. Ct. App. 
2003). 

Circuit court employed incorrect legal 
standards in considering and imposing 
sanctions against both parties to insur- 
ance dispute, and thus neither sanction 
order could stand. Nationwide Mut. Ins. 
Co. V. Evans, 553 So. 2d 1117 (Miss. 1989). 

Review. 

This rule vests trial courts with discre- 
tionary authority to impose sanctions 
upon parties or attorneys; where trial 
court has employed correct legal stan- 
dards, reviewing court may reverse only 
where it finds an abuse of discretion. Na- 
tionwide Mut. Ins. Co. V. Evans, 553 So. 2d 
1117 (Miss. 1989). 

Sanctions. 

Doctor's motion for sanctions under 
Miss. R. Civ. P. 11 and Miss. Code Ann. 
§ 11-55-5 against a patient's attorney in a 
wrongful death action that alleged medi- 
cal malpractice was properly denied as the 
attorney had a reasonable hope of success 
and had performed due diligence in deter- 
mining the validity of the claim against 



the doctor. Todd v. Clayton, 53 So. 3d 827 
(Miss. Ct. App. 2011). 

Based on the lack of evidence in the 
record, the fact that a grantee's brother 
was not a movant in the grantee's motion 
for Miss. R. Civ. P. 11 sanctions, and 
ambiguity regarding the calculation of the 
judgment, there was plain error in a chan- 
cellor's award of attorney's fees. Walton v. 
Walton, 44 So. 3d 1035 (Miss. Ct. App. 
2010). 

Appellate court could not find that the 
chancery court erred in concluding that 
sanctions under neither Miss. R. Civ. P. 
11(b) nor the Litigation Accountability 
Act, Miss. Code Ann. § 11-55-5(1) were 
warranted because while the chancellor 
had ordered the property owner to pay the 
county's fees for producing the records, it 
was unclear whether the property owner 
was to pay the bill within 20 days of the 
hearing or the final judgment. However, 
once the property owner paid the fees and 
the county withdrew its motion, the issue 
became moot. LaCroix v. Marshall County 
Bd. of Supervisors, 28 So. 3d 650 (Miss. 
Ct. App. 2009), writ of certiorari denied by 

27 So. 3d 404, 2010 Miss. LEXIS 90 (Miss. 
2010). 

In a will-contest action, even if the mat- 
ter were properly before the appellate 
court, the girlfriend of the decedent's mo- 
tion for sanctions and attorney fees under 
Miss. Code Ann. § 11-55-5(1) and Miss. R. 
Civ. P. 11(b) was waived since she filed no 
notice of appeal for her "counter-appeal" 
as required by Miss. R. App. P. 4(a). More- 
over, once the chancellor held the matter 
in abeyance, the record did not reflect that 
the girlfriend raised the motion for sanc- 
tions again until her appellate brief and 
she did not file her notice of appeal until 

28 days after entry of the final judgment; 
at any time in the interim, the girlfriend 
could have requested a ruling on her mo- 
tion for sanctions, but she failed to do so. 
Frazier v. Loew (In re Caspelich), 22 So. 
3d 1199 (Miss. Ct. App. 2009). 

Violations under the Litigation Ac- 
countability Act, Miss. Code Ann. § 11-55- 
5(1) had to be brought in motion form; 
thus, the Legislature did not create a 
separate cause of action by virtue of Miss. 
R. Civ. P. 11, and the doctor's claim 
against the attorney was properly dis- 



66 



RULES OF CIVIL PROCEDURE 



Rule 11 



missed; the attorney did not act in manner 
that was improper or would warrant sanc- 
tions. Rose V. Tullos, 994 So. 2d 734 (Miss. 
2008). 

Attorney was hable for attorneys' fees 
and costs under Miss. R. Civ. R 11 where 
the several pleadings filed by the attorney 
constituted "harassment" under the Rule. 
In re Spencer, 985 So. 2d 330 (Miss. 2008), 
writ of certiorari denied by 555 U.S. 1046, 
129 S. Ct. 629, 172 L. Ed. 2d 610, 2008 
U.S. LEXIS 8600, 77 U.S.L.W. 3324 
(2008). 

Chancellor abused her discretion by 
awarding a judgment of fees and expenses 
greater than that supported by the record 
as there was nothing in the Litigation 
Accountability Act, Miss. Code Ann. § 11- 
55-1 et seq., or Miss. R. Civ. R 11 that 
supported awarding attorneys' fees and 
expenses in excess of those actually in- 
curred. In re Spencer, 985 So. 2d 330 
(Miss. 2008), writ of certiorari denied by 
555 U.S. 1046, 129 S. Ct. 629, 172 L. Ed. 
2d 610, 2008 U.S. LEXIS 8600, 77 
U.S.L.W. 3324 (2008). 

Chancellor did not abuse her discretion 
in finding the several pleadings filed by 
the attorney constituted "harassment" un- 
der Miss. R. Civ. P. 11; therefore, the 
attorney was liable for attorneys' fees and 
costs under Rule 11. In re Spencer, — So. 
2d — , 2008 Miss. LEXIS 126 (Miss. Feb. 
28, 2008), substituted opinion at, opinion 
withdrawn by 985 So. 2d 330, 2008 Miss. 
LEXIS 327 (Miss. 2008). 

Chancellor committed plain error and 
therefore abused her discretion by award- 
ing a judgment of fees and expenses 
greater than that supported by the record; 
there was nothing in the Litigation Ac- 
countability Act (Act) or Miss. R. Civ. P. 11 
that supported awarding attorneys' fees 
and expenses in excess of those actually 
incurred as both the Act and the Rule 
allowed only for the recovery of "reason- 
able" fees and costs; the punitive functions 
of both the Act and the Rule were served 
by simply awarding reasonable attorneys' 
fees and costs, not an amount in excess of 
them. In re Spencer, — So. 2d — , 2008 
Miss. LEXIS 126 (Miss. Feb. 28, 2008), 
substituted opinion at, opinion withdrawn 
by 985 So. 2d 330, 2008 Miss. LEXIS 327 
(Miss. 2008). 



Trial court's failure to award attorney 
fees was not an abuse of discretion when 
the parties did not address attorney fees 
in their agreement; further, the trial court 
did not abuse its discretion in refusing to 
impose sanction or monetary damages. 
Johnston v. Palmer, 963 So. 2d 586 (Miss. 
Ct. App. 2007). 

Trial court ewed in dismissing plain- 
tiffs' case without prejudice pursuant to 
Miss. R. Civ. P. 11(a) and 41(b) based on 
the fact that plaintiffs were originally 
represented by a foreign attorney, who 
had not been admitted pro hac vice pur- 
suant to Miss. R. App. P. 46 because a 
subsequent appearance bya member of 
the Mississippi bar cured the error; the 
foreign attorney's violation of Miss. R. 
App. P 46 and La. St. Bar art. XVI, R. 
5.5(a), which prohibited the unauthorized 
practice of law, warranted sanctions 
against the attorney and notification of 
the violation to the Louisiana state bar. 
Dinet v. Gavagnie, 948 So. 2d 1281 (Miss. 
2007). 

In an appeal of a judgment terminating 
his parental rights, there was no evidence 
in the record that the father pursued 
litigation in the sole attempt to harass the 
mother, and the father sought relief for a 
fundamental right, that of being a parent 
to his two children; therefore, the appel- 
late court found no abuse of discretion by 
the chancellor and affirmed the trial 
court's orders denying the mother's re- 
quest for reasonable expenses and attor- 
ney fees. CM. v. R.D.H., 947 So. 2d 1023 
(Miss. Ct. App. 2007). 

Sanctions were not proper where law 
firm filed an interpleader to determine 
ownership of attorney fees it held in a 
county after other attorneys had com- 
menced litigation over the funds the law 
firm held in another county. Scruggs, 
Millette, Bozeman & Dent, PA. v. Merkel 
& Cocke, PA, 804 So. 2d 1000 (Miss. 
2001). 

Trial court improperly awarded sanc- 
tions against the Mississippi Department 
of Human Services in a suit seeking to 
establish that a divorce decree that did 
not include a child support award was 
either void or insufficiently supported; 
neither argument was necessarily frivo- 
lous, and the trial court failed to set forth 



67 



Rule 11 



MISSISSIPPI COURT RULES 



its reasons for awarding sanctions. Miss. 
Dep't of Human Servs. v. Shelby, — So. 2d 
— , 2001 Miss. LEXIS 209 (Miss. Aug. 23, 
2001), opinion withdrawn by, substituted 
opinion at 802 So. 2d 89, 2001 Miss. 
LEXIS 326 (Miss. 2001). 

Sanctions were properly awarded to the 
defendant in an action for intentional in- 
fliction of emotional distress based on an 
allegation that the plaintiff's former wife 
set out on a course of conduct calculated to 
lead to the total destruction of the parent- 
child/grandparent-child relationship be- 
tween the parties' child and her father's 
side of the family where the trial court 
found that the plaintiffs had no hope of 
sucess in the case. Little v. Collier, 759 So. 
2d 454 (Miss. Ct. App. 2000). 

Sanctions under this rule were inappro- 
priate in a proceeding arising from a city's 
failure to act on a request for a building 
permit because the issue was finally 
deemed moot due to the expiration of the 
applicant's option on the property at issue 
and subsequent sale of the property; when 
the case was determined to be moot, the 
issue of sanctions also became moot. City 
of Madison v. Bryan, 763 So. 2d 162 (Miss. 
2000). 

As the appellant had a viable claim 
concerning the type of alimony awarded in 
the final judgment of divorce, the appellee 
was not entitled to sanctions, notwith- 
standing her assertion that the appellant 
was attempting to harass her by filing a 
frivolous appeal. Murray v. Murray, — So. 
2d — 1999 Miss. App. LEXIS 265 (Miss. 
Ct. App. May 4, 1999), affirmed in part 
and reversed in part by 754 So. 2d 1200, 
2000 Miss. LEXIS 51 (Miss. 2000). 

Sanctions were inappropriate in dispute 
between collection agency and its client, 
where it was conceivable that collection 
agency thought it had an arguable claim. 
Milliken & Michaels, Inc. v. Fred 
Netterville Lumber Co., 676 So. 2d 266 
(Miss. 1996). 

Substantial justification existed to sup- 
port personal representative's filing of 
complaint alleging undue influence on 
part of principal beneflciary to will, and 
there was no evidence that claim was 
unnecessarily expanded or brought to de- 
lay or harass, and therefore sanctions 
against representative were unwar- 



ranted. Pallatin v Jones, 638 So. 2d 493 
(Miss. 1994). 

There was nothing in record to suggest 
that plaintiffs or their attorneys acted in 
bad faith, and case set forth by plaintiffs' 
attorneys was not so lacking in any hope 
for success as to render it frivolous; there- 
fore trial court's imposition of sanctions 
was reversed. Stevens v. Lake, 615 So. 2d 
1177 (Miss. 1993). 

Trial court erroneously applied a theory 
of "continuing duty" to assess merits of 
lawsuit, and where record failed to dem- 
onstrate that plaintiff and her attorney 
knew of lack of proximate cause at time 
complaint was filed, sanctions were not 
warranted. January v. Barnes, 621 So. 2d 
915 (Miss. 1992). 

Suit filed by candidate in mayoral elec- 
tion could not be deemed frivolous where 
lower court misapplied the law, and sanc- 
tions against candidate were unjustified 
since there was no evidence that she had 
harassment or delay in mind when she 
instituted proceedings. Stringer v. Lucas, 
608 So. 2d 1351 (Miss. 1992). 

Sanctions were improperly imposed 
where plaintiff filed suit in chancery court 
in good faith; by virtue of prior precedent, 
plaintiff" was following what it believed to 
be the correct procedure for trying ques- 
tions of title. McDonald's Corp. v. Robin- 
son Indus., Inc., 592 So. 2d 927 (Miss. 
1991). 

Circuit judge did not err in assessing 
$500 sanction against plaintiff" for his 
false answer to interrogatory, which nei- 
ther he nor his counsel ever attempted to 
correct. Nichols v Munn, 565 So. 2d 1132 
(Miss. 1990). 

Sanctions against plaintiff were appro- 
priate, where plaintiff had no hope of 
success on its claim for injunctive relief, 
and defendant had a complete defense to 
plaintiff's claim for repayment of bank 
note and advances on commissions. Tricon 
Metals & Services, Inc. v Topp, 537 So. 2d 
1331 (Miss. 1989). 

Award of attorney's fees was reversed, 
where case involved one of the most liti- 
gated issues in state for the preceding 
eight years, and the public concern was 
meritorious. Hill v. Thompson, 564 So. 2d 
1 (Miss. 1989). 

Although pro se parties should be held 
to same rules of procedure and substan- 



68 



RULES OF CIVIL PROCEDURE Rule 12 

tive law as represented parties, plaintiff plaintiff had a justifiable claim. Dethlefs 

would not be penalized via sanctions for v. Beau Maison Dev. Corp., 511 So. 2d 112 

exaggerating her claim, where defendant (Miss. 1987). 
was put to no additional expense and 

RESEARCH REFERENCES 

ALR. When statute of limitations be- Law Reviews — Taming an Elephant: 

gins to run upon action against attorney A Closer Look at Mass Tort Screening and 

for legal malpractice — deliberate wrong- the Impact of Mississippi Tort Reforms, 26 

ful acts or omissions. 67 A.L.R.Sth 587. Miss. C. L. Rev. 253, 2006/2007. 

Rule 12. Defenses and objections — when and how presented — by 
pleading or motion — motion for judgment on the pleadings. 

(a) When presented. A defendant shall serve his answer within thirty days 
after the service of the summons and complaint upon him or within such time 
as is directed pursuant to Rule 4. A party served with a pleading stating a 
cross-claim against him shall serve an answer thereto within thirty days after 
the service upon him. The plaintiff shall serve his reply to a counter-claim in 
the answer within thirty days after service of the answer or, if a reply is 
ordered by the court, within thirty days after service of the order, unless the 
order otherwise directs. The service of a motion permitted under this rule 
alters these periods of time as follows, unless a different time is fixed by order 
of the court: 

(1) if the court denies the motion or postpones its disposition until the trial 
on the merits, the responsive pleading shall be served within ten days after 
notice of the court's action; 

(2) if the court grants a motion for a more definite statement, the responsive 
pleading shall be served within ten days after the service of the more definite 
statement. 

The times stated under this subparagraph may be extended, once only, for a 
period not to exceed ten days, upon the written stipulation of counsel filed in 
the records of the action. 

(b) How presented. Every defense, in law or fact, to a claim for relief in any 
pleading, whether a claim, counter-claim, cross-claim, or third-party claim, 
shall be asserted in the responsive pleading thereto if one is required, except 
that the following defenses may at the option of the pleader be made by motion: 

(1) Lack of jurisdiction over the subject matter, 

(2) Lack of jurisdiction over the person, 

(3) Improper venue, 

(4) Insufficiency of process, 

(5) Insufficiency of service of process, 

(6) Failure to state a claim upon which relief can be granted, 

(7) Failure to join a party under Rule 19. 

No defense or objection is waived by being joined with one or more other 
defenses or objections in a responsive pleading or motion. If a pleading sets 
forth a claim for relief to which the adverse party is not required to serve a 

69 



Rule 12 MISSISSIPPI COURT RULES 

responsive pleading, he may assert at the trial any defense in law or fact to 
that claim for relief. If, on a motion to dismiss for failure of the pleading to 
state a claim upon which relief can be granted, matters outside the pleading 
are presented to and not excluded by the court, the motion shall be treated as 
one for summary judgment and disposed of as provided in Rule 56, and all 
parties shall be given reasonable opportunity to present all material made 
pertinent to such a motion by Rule 56; however, if on such a motion matters 
outside the pleadings are not presented, and if the motion is granted, leave to 
amend shall be granted in accordance with Rule 15(a). 

(c) Motion for judgment on the pleadings. After the pleadings are closed but 
within such time as not to delay the trial, any party may move for judgment on 
the pleadings. If, on a motion for judgment on the pleadings, matters outside 
the pleadings are presented to and not excluded by the court, the motion shall 
be treated as one for summary judgment and disposed of as provided in Rule 
56, and all parties shall be given reasonable opportunity to present all material 
made pertinent to such a motion by Rule 56; however, if on such a motion 
matters outside the pleadings are not presented, and if the motion is granted, 
leave to amend shall be granted in accordance with Rule 15 (a). 

(d) Preliminary hearings. The defenses specifically enumerated (1) through 
(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and 
the motion for judgment on the pleadings (subdivision (c) of this rule), shall be 
heard and determined before trial on application of any party, unless the court 
orders that the hearing and determination thereof be deferred until the trial. 

(e) Motion for more definite statement. If a pleading to which a responsive 
pleading is permitted is so vague or ambiguous that a party cannot reasonably 
be required to frame a responsive pleading, he may move for a more definite 
statement before interposing his responsive pleading. The motion shall point 
out the defects complained of and the details desired. If the motion is granted 
and the order of the court is not obeyed within ten days after notice of the order 
or within such other time as the court may fix, the court may strike the 
pleading to which the motion was directed or make such order as it deems just. 

(f) Motion to strike. Upon motion made by a party before responding to a 
pleading or, if no responsive pleading is permitted by these rules, upon motion 
made by a party within thirty days after the service of the pleading upon him 
or upon the court's own initiative at any time, the court may order stricken 
from any pleading any insufficient defense or any redundant, immaterial, 
impertinent, or scandalous matter. 

(g) Consolidation of defenses in motion. A party who makes a motion under 
this rule may join with it any other motions herein provided for and then 
available to him. If a party makes a motion under this rule but omits therefrom 
any defense or objection then available to him which this rule permits to be 
raised by motion, he shall not thereafter make a motion based on the defense 
or objection so omitted, except a motion as provided in subdivision (h)(2) hereof 
on any of the grounds there stated. 

(h) Waiver or preservation of certain defenses. 

(1) A defense of lack of jurisdiction over the person, improper venue, 
insufficiency of process, or insufficiency of service of process is waived (A) if 

70 



RULES OF CIVIL PROCEDURE 



Rule 12 



omitted from a motion in the circumstances described in subdivision (g), or (B) 
if it is neither made by a motion under this rule nor included in a responsive 
pleading or an amendment thereof permitted by Rule 15 (a) to be made as a 
matter of course. 

(2) A defense of failure to state a claim upon which relief can be granted, a 
defense of failure to join a party indispensable under Rule 19, and an objection 
of failure to state a legal defense to a claim may be made in any pleading 
permitted or ordered under Rule 7(a), or by motion for judgment on the 
pleadings, or at the trial on the merits. 

(3) Whenever it appears by suggestion that the parties or otherwise that the 
court lacks jurisdiction of the subject matter, the court shall dismiss the action 
or transfer the action to the court of proper jurisdiction. 

COMMENT 



The purpose of Rule 12 is to expedite 
and simplify the pretrial phase of litiga- 
tion while promoting the just disposition 
of cases. The periods of time referred to in 
Rule 12(a) relate to service of process, 
motions, pleadings or notices, and not to 
the filing of the instruments. Because of 
the nature of divorce cases, Rules 12(a)(1) 
and (2) do not apply to such proceedings. 
See also M.R.C.R 81(b). Rule 12(a) repre- 
sents a marked change from the former 
procedures which linked the return date 
or response date to a term of court. See 
Miss. Code Ann. §§ 11-5-17; 11-7-121; and 
13-3-13 (1972). 

Rules 12(b)(6) and 12(c) serve the same 
function, practically, as the general de- 
murrer. See Investors Syndicate of Amer- 
ica, Inc. V. City of Indian Rocks Beach, 
Florida, 434 R2d 871, 874 (5th Cir. 1970). 
They are the proper motions for testing 
the legal sufficiency of the complaint; to 
grant the motions there must appear to a 
certainty that the plaintiff is entitled to no 
relief under any set of facts that could be 
proved in support of the claim. 

If the complaint is dismissed with leave 
to amend and no amendment is received, 
the dismissal is a final judgment and is 
appealable unless the dismissal relates to 
only one of several claims. See Ginsburg v. 
Stern, 242 R2d 379 (3rd Cir. 1957). 

A motion pursuant to Rule 12(c) may be 
granted if it is not made so that its dispo- 
sition would delay the trial; the moving 
party must be clearly entitled to judg- 
ment. See Greenherg v. General Mills Fun 



Group, Inc., 478 R2d 254, 256 (5th Cir. 
1973). 

Under 12(d), the decision to defer 
should be made when the determination 
will involve the merits of the action, thus 
making deference generally applicable to 
motions on Rules 12(b)(6) and (c). 

Rule 12(e) abolishes the bill of particu- 
lars. Miss. Code Ann. § 11-7-97 (1972). 
The motion for a more definite statement 
requires merely that — a more definite 
statement — and not evidentiary details. 
The motion will lie only when a responsive 
pleading is required, and is the only rem- 
edy for a vague or ambiguous pleading. 

Ordinarily, Rule 12(f) will require only 
the objectionable portion of the pleadings 
to be stricken, and not the entire pleading. 
Motions going to redundant or immaterial 
allegations, or allegations of which there 
is doubt as to relevancy, should be denied, 
the issue to be decided being whether the 
allegation is prejudicial to the adverse 
party. Motions to strike a defense for in- 
sufficiency should, if granted, be granted 
with leave to amend. Rule 12(f) is gener- 
ally consistent with past Mississippi pro- 
cedure. See Miss. Code Ann. § 11-7-59(3) 
(1972); Parish v. Lumbermen's Mut. Gas. 
Co., 242 Miss. 288, 134 So.2d 488 (1961). 

Rule 12(g) allows the urging of all de- 
fenses or objections in one motion with no 
waiver. There are three important quali- 
fications which permit at least two rounds 
of motions: (1) the requirement of consol- 
idation applies only to defenses and objec- 
tions then available to the moving party; 



71 



Rule 12 



MISSISSIPPI COURT RULES 



(2) the requirement applies only to de- 
fenses and objections which this rule per- 
mits to be raised by motion; (3) the prohi- 
bition against successive motions is 
subject to the exceptions stated in Rule 
12(h). 

Rule 12(h)(1) states that certain speci- 
fied defenses which may be available to a 
party when he makes a pre-answer mo- 
tion, but which he omitted from the mo- 
tion, are waived. A party who by motion 
invites the court to pass upon a threshold 
defense should bring forward all the spec- 
ified defenses he then has and thus allow 
the court to do a reasonably complete job. 
The waiver reinforces the policy of Rule 
12(g) forbidding successive motions. 5 
Wright & Miller, Federal Practice and 
Procedure, Civil § 1391 (1969). 

Rule 12(h)(2) preserves three defenses 
against waiver during the pleading, mo- 
tion, discovery, and trial stages of an ac- 
tion; however, such defenses are waived if 
not presented before the close of trial. 5 
Wright & Miller, supra, § 1392. 



Under Rule 12(h)(3) a question of sub- 
ject matter jurisdiction may be presented 
at any time, either by motion or answer. 
Further, it may be asserted as a motion for 
relief from a final judgment under 
M.R.C.P. 60(b)(4) or may be presented for 
the first time on appeal. Welch v. Bryant, 
157 Miss. 559, 128 So. 734 (1930); Brown 
V. Bank, 31 Miss. 454 (1856). This provi- 
sion preserves the traditional Mississippi 
practice of transferring actions between 
the circuit and chancery courts, as pro- 
vided by Miss. Const. § 157 (all causes 
that may be brought in the circuit court 
whereof the chancery court has jurisdic- 
tion shall be transferred to the chancery 
court) and § 162 (all causes that may be 
brought in the chancery court whereof the 
circuit court has exclusive jurisdiction 
shall be transferred to the circuit court), 
but not reversing for a court's improperly 
exercising its jurisdiction, Miss. Const. 
§ 147. Cazeneuve v. Curell, 70 Miss. 521, 
13 So. 32 (1893). 

[Amended effective February 1, 1990.] 



JUDICIAL DECISIONS 



Construction. 

Affirmative defenses. 

Costs. 

Dismissal. 

Failure to state a claim. 

Hearings. 

Motions. 

Necessary parties. 

Personal jurisdiction. 

Pleadings. 

Service of process. 

Subject matter jurisdiction. 

Summary judgment. 

Venue. 

Waiver. 

Construction. 

A court's inquiries under M.R.C.P. Rule 
12(b)(2) are not only separate from, but 
also precede, consideration of Rule 
12(b)(6) inquiries. Petters v. Petters, 560 
So. 2d 722 (Miss. 1990). 

When a complaint is tested via motion 
to dismiss for failure to state a claim, its 
sufficiency in substantial part is deter- 
mined by reference to M.R.C.P. Rules 8(a) 
and (e). Grantham v. Mississippi Dep't of 
Corrections, 522 So. 2d 219 (Miss. 1988). 



When a complaint is tested via motion 
under M.R.C.P Rule 12(b)(6) for failure to 
state a claim upon which relief may be 
granted, sufficiency of complaint is in sub- 
stantial part determined by reference to 
subdivisions (a) and (e) of Rule 8. Luckett 
V. Mississippi Wood, Inc., 481 So. 2d 288 
(Miss. 1985). 

Affirmative defenses. 

In a breach of contract action brought 
by the employee, the employer did not 
assert any affirmative defenses in his an- 
swer to the employee's complaint; rather, 
the employer waited and asserted them in 
his motion for summary judgment, which 
was more than four years later. When a 
responsive pleading was required, all af- 
firmative defenses must be raised in that 
pleading, Miss. R. Civ. P. 12(b); therefore, 
the chancellor erred in relying on those 
affirmative defenses in reaching his judg- 
ment. Harris v. Tom Griffith Water Well & 
Conductor Serv., 26 So. 3d 352 (Miss. Ct. 
App. Jan. 27, 2009), reversed by 26 So. 3d 
338, 2010 Miss. LEXIS 46, 30 I.E.R. Cas. 
(BNA) 586 (Miss. 2010). 



72 



RULES OF CIVIL PROCEDURE 



Rule 12 



Costs. 

Trial court did not err in failing to 
award plaintiff her expenses, costs and 
attorney's fees when defendants' M.R.C.P. 
Rule 12 motions to dismiss were denied; 
provision in Rule 56 (h) of award of costs 
to prevailing party was not applicable to 
motions under Rule 12. Joseph v. Tennes- 
see Partners, Inc., 501 So. 2d 371 (Miss. 
1987). 

Dismissal. 

Three cases were properly dismissed for 
insufficiency of process and insufficiency 
of service of process, under Miss. R. Civ. P. 
12(b)(4)-(5), where the process issued to 
defendants was deficient and not in sub- 
stantial compliance with Miss. R. Civ. P. 
4(b), a pro se response by one defendant 
might have constituted an appearance un- 
der Miss. R. Civ. P. 55, but was not a valid 
answer because it did not comport with 
the filing requirement of Miss. R. Civ. P. 
5(d). Fletcher v. Limeco Corp., 996 So. 2d 
773 (Miss. 2008), remanded by 32 So. 3d 
429, 2010 Miss. LEXIS 182 (Miss. 2010). 

Because Miss. Code Ann. § 15-1-36(15) 
clearly and unambiguously stated that no 
action against a health care provider 
could be commenced without providing a 
60-day pre-suit notice and because the 
personal representative of a decedent's 
estate failed to provide any written notice 
to a nursing care facility concerning her 
intent to commence a wrongful death suit, 
the nursing care facility was entitled to a 
dismissal. Forest Hill Nursing Ctr. & 
Long Term Care Mgmt., LLC v. Brister, 
992 So. 2d 1179 (Miss. 2008). 

Although the state legislature could not 
promulgate statutes dictating to the judi- 
ciary what a party was required to attach 
to pleadings filed in court, the legislature 
had constitutional authority to set out 
pre-suit requirements such as the require- 
ment that a litigant obtain an expert 
consultation prior to commencing a medi- 
cal malpractice suit. Where the attorney 
representing the personal representative 
of the estate of a decedent in a wrongful 
death suit against a nursing care facility 
admitted that he did not consult an expert 
prior to commencing the lawsuit, the 
nursing care facility was entitled to a 
dismissal. Forest Hill Nursing Ctr. & 



Long Term Care Mgmt., LLC v. Brister, 
992 So. 2d 1179 (Miss. 2008). 

Trial court properly dismissed individu- 
als' complaint against the Supreme Court 
chief justice for appointing a special chan- 
cellor to hear outstanding matters regard- 
ing two underlying cases as the chief jus- 
tice enjoyed judicial immunity and the 
appointment was a judicial act. Vinson v. 
Prather, 879 So. 2d 1053 (Miss. Ct. App. 
2004). 

In initial suit by homeowners against a 
seller, for fraud, where the homebuilder 
appeared for a deposition pursuant to a 
subpoena, the homebuilder did not make 
an appearance when the homebuilder was 
not yet named as a party. Thus, when the 
homebuilder was later added as defen- 
dant in the homeowners' negligence ac- 
tion, and failed to timely answer, entry of 
default judgment was proper; further, the 
homebuilder's alleged inability to contact 
the homeowners' counsel did not annul 
the homebuilder's obligation to timely an- 
swer under Miss. R. Civ. P. 12. Williams v. 
Kelly, 872 So. 2d 783 (Miss. Ct. App. 
2004). 

Motion to dismiss a breach of contract 
claim was improper and was reversed on 
de novo review. A company properly pled a 
breach where it pled that a partnership 
with which it had a contract for the sale of 
land materially breached the contract first 
and where it pled that the partnership 
took actions, including wrongfully with- 
holding a legal description of the property, 
that violated the covenant of good faith 
and fair dealing by preventing the com- 
pany from fulfilling the terms of the agree- 
ment. Favre Prop. Mgmt., LLC v. Cinque 
Bambini, 863 So. 2d 1037 (Miss. Ct. App. 
2004). 

Dismissal, pursuant to Miss. R. Civ. P. 
12(b)(6), of an inmate's claim against the 
employees of the Missouri Department of 
Corrections was proper where the employ- 
ees were acting within the course and 
scope of their employment; the inmate's 
negligence action was barred by the Mis- 
sissippi Tort Claims Act, Miss. Code Ann. 
§ 11-46-1 et seq. Whitt v. Gordon, 872 So. 
2d 71 (Miss. Ct. App. 2004). 

In a suit filed by a former employer 
against a former employee, the employ- 
ment agreement that was presented to the 



73 



Rule 12 



MISSISSIPPI COURT RULES 



chancery court was not a valid enforceable 
contract as it had lapsed by its own terms 
without renewal more than a year before 
the lawsuit was filed. As it was simple 
contract law that a valid and enforceable 
contract was required to maintain an ac- 
tion for breach of contract or injunctive 
relief thereon, the chancery court did not 
err in granting a motion to dismiss. 
HeartSouth, PLLC v. Boyd, 865 So. 2d 
1095 (Miss. 2003). 

In a suit filed by a former employer 
against a former employee, the employ- 
ment agreement was not ambiguous, and 
by its own language the employment 
agreement had in fact lapsed one year 
before the employee left the employer's 
organization and one year and 16 days 
before the employer filed its complaint for 
breach of contract. Therefore, the court 
did not err in finding that the contract had 
in fact expired and was invalid and unen- 
forceable. HeartSouth, PLLC v. Boyd, 865 
So. 2d 1095 (Miss. 2003). 

Court properly dismissed a suit filed by 
a former employer against a former em- 
ployee, where the covenant not to compete 
expired 16 days before the filing of the 
complaint, and the agreement lapsed for 
want of renewal. HeartSouth, PLLC v. 
Boyd, 865 So. 2d 1095 (Miss. 2003). 

Trial court properly dismissed the de- 
pendents' suit against the municipal offi- 
cials under Miss. R. Civ. P. 12(c) where, 
before municipal officials could be found 
negligent, thereby entitling a plaintiff to 
recover, the plaintiff had to show the ex- 
istence of a legal duty owed to him by the 
municipal officials; any assertion that the 
municipal officials breached a duty to the 
decedent because they failed to guarantee 
his safety and well-being was unrealistic 
and untenable, given that the municipal 
officials were not present when the threat 
on the decedent's life was made, and the 
municipal officials, acting in their individ- 
ual capacity, owed no duty to the decedent. 
Dependants of Reid v. City of Canton, 858 
So. 2d 163 (Miss. Ct. App. 2003). 

While truck owner's claim to determine 
insurance coverage under Miss. R. Civ. P. 
57(b)(2) was futile because the insurance 
company did not deny coverage, and dis- 
missal as to that claim was proper, the 
trial court abused its discretion in denying 



the truck owner's motions to compel dis- 
covery, and for leave to file a first amended 
complaint, to add a claim of intentional 
infliction of emotional distress based on 
the plain language of Miss. R. Civ. P. 15(a). 
Poindexter v. S. United Fire Ins. Co., 838 
So. 2d 964 (Miss. 2003). 

Action for wrongful death of inmate was 
properly dismissed; fact that medical 
treatment was inadequate for severity of 
inmate's condition did not indicate that 
doctors in question committed "willful 
wrongs or malicious acts" sufficient to 
overcome defendants' qualified immunity. 
Sparks v. Kim, 701 So. 2d 1113 (Miss. 
1997). 

Governor's contested actions were dis- 
cretionary and, as such, mandamus could 
not lie, and citizens' challenge to permit 
for building of hazardous waste treatment 
facility should have been dismissed for 
failure to state a claim. USPCI of Miss., 
Inc. V. State ex rel. McGowan, 688 So. 2d 
783 (Miss. 1997). 

Chancery court did not err in dismiss- 
ing plaintiff's suit against surveyor with- 
out stating any grounds for the dismissal, 
where it was obvious that plaintiff had 
merely claimed error or negligence, but 
failed to specifically show in what way 
defendant was negligent. Weeks v. 
Thomas, 662 So. 2d 581 (Miss. 1995). 

Board of supervisors can only make a 
county liable for a contract by a valid 
order duly entered upon its minutes, and 
where there was a clear absence of such 
approval the trial court's dismissal was 
proper. Butler v. Board of Supervisors, 659 
So. 2d 578 (Miss. 1995). 

Dismissal of action against school dis- 
trict for negligent retention and supervi- 
sion of employee was premature, and re- 
quired remand for further discovery and 
development of facts. T.M. v. Nobhtt, 650 
So. 2d 1340 (Miss. 1995). 

As a matter of law, prisoner's civil rights 
complaint did not state a claim upon 
which relief could be granted, since being 
housed with inmate diagnosed with active 
tuberculosis was responsibility of classifi- 
cation committee, not the five named de- 
fendants, and prisoner's complaint was 
not properly pled since it did not state acts 
or omissions by named defendants which 
demonstrated conduct amounting to de- 



74 



RULES OF CIVIL PROCEDURE 



Rule 12 



liberate indifference. Bilbo v. Thigpen, 647 
So. 2d 678 (Miss. 1994). 

In view of notice pleading requirements 
of M.R.C.P. Rule 8, client's complaint 
against his former attorney stated at least 
one actionable cause upon which relief 
could be granted, and therefore summary 
judgment in favor of attorney was re- 
versed. Owen V. Pringle, 621 So. 2d 668 
(Miss. 1993). 

Trial court properly granted defendant's 
motion to dismiss, since plaintiffs received 
full satisfaction of their claim when de- 
fault judgment was paid by a co-defen- 
dant, together with interest; plaintiffs 
were thus estopped from pursuing any 
claim for relief against defendant. Evans 
V. Sharpley, 607 So. 2d 1210 (Miss. 1992). 

Proper motion for defendant to make at 
the close of plaintiffs' case was a motion to 
dismiss pursuant to M.R.C.P. Rule 41(b), 
rather than Rule 12(b)(6); under Rule 
41(b), judge must consider the evidence 
fairly, rather than in the light most favor- 
able to the plaintiff. Century 21 Deep S. 
Properties, Ltd. v. Corson, 612 So. 2d 359 
(Miss. 1992). 

Since circuit court acted entirely within 
the pleadings and struck all affidavits 
before ruling, supreme court would treat 
judgment below as though court had dis- 
missed complaint for failure to state a 
claim upon which relief could be granted, 
as opposed to one disposed of on summary 
judgment. State ex rel. Moore v. Molpus, 
578 So. 2d 624 (Miss. 1991). 

Motion for dismissal under subdivision 
(b)(6) of this rule raises an issue of law, 
over which supreme court conducts de 
novo review. Tucker v. Hinds County, 558 
So. 2d 869 (Miss. 1990). 

To grant a motion under subdivision 
(b)(6) of this rule, it must appear to a 
certainty that plaintiff is entitled to no 
relief under any set of facts that could be 
provided in support of his claim. Martin v. 
Phillips, 514 So. 2d 338 (Miss. 1987). 

Defendant had no right of appeal from 
refusal of trial judge to grant his M.R.C.P. 
Rule 12(b)(6) motion to dismiss the plain- 
tiff's complaint; any defects had been 
cured procedurally by subsequent pro- 
ceedings in the case. The complaint, when 
conformed with the proof, stated a totally 
viable claim. Stanton & Assocs. v. Bryant 
Constr. Co., 464 So. 2d 499 (Miss. 1985). 



Failure to state a claim. 

Because father's claim on a promissory 
note against a son would still be futile if a 
trial court allowed him to amend it under 
Miss. R. Civ. P. 15 due to the running of 
the statute of limitations, trial court did 
not err in denying the father's motion to 
amend and granting the son's motion to 
dismiss under Miss. R. Civ. P. 12(b)(6). 
Merideth v. Merideth, 987 So. 2d 477 
(Miss. Ct. App. 2008). 

Medical malpractice suit was properly 
dismissed for failure to state a claim be- 
cause plaintiffs did comply with Miss. 
Code Ann. § 11-1-58 by filing with their 
complaint either an expert disclosure or a 
certificate of counsel stating that an ex- 
pert disclosure had not yet been obtained 
because of the running of the statute of 
limitations under Miss. Code Ann. § 15-1- 
36; strict compliance with Miss. Code Ann. 
§ 11-1-58 was mandatory, and defen- 
dants, a medical center and the estate of a 
deceased doctor, which had been substi- 
tuted as a defendant under Miss. R. Civ. P. 
25(a)(1) after the doctor's death and reas- 
serted the defenses raised by the doctor, 
had both raised as an affirmative defense 
plaintiffs' failure to comply with the stat- 
ute. Caldwell v. N. Miss. Med. Ctr., Inc., 
956 So. 2d 888 (Miss. 2007). 

Clearly, more than 90 days after the 
first notice to creditors had elapsed when 
plaintiff (a surviving child), filed his claim 
against the estate, claiming he was enti- 
tled to all the insurance proceeds per the 
decedent's property settlement with a for- 
mer wife. However, when the decedent 
died, plaintiff was a minor, and according 
to the terms of the decedent's will, the 
decedent's second and surviving spouse 
had been appointed testamentary guard- 
ian of plaintiff 's person and estate; defen- 
dant was in a fiduciary relationship with 
plaintiff, and in that capacity, she not only 
had an obligation to initiate any and all 
claims which plaintiff may have had, but 
she had an obligation to initiate them 
timely, and therefore, the chancery court 
erred in granting defendant's Miss. R. Civ. 
P. 12(b) motion. Thornhill v. Thornhill, 
905 So. 2d 747 (Miss. Ct. App. 2004). 

Court did not err in granting an insur- 
er's motion to dismiss an insured's action 
pursuant to Miss. R. Civ. P. 12(b)(6) be- 



75 



Rule 12 



MISSISSIPPI COURT RULES 



cause the insured pled no facts to support 
a contention that the insurer interfered 
with proper payment under a pohcy. Ngo 
V. Centennial Ins. Co., 893 So. 2d 1076 
(Miss. Ct. App. 2005). 

Issue on appeal was whether the offi- 
cers were entitled to equitable review of 
their claims relating to compensation and 
retirement benefits, which were excluded 
from state service grievance procedure. 
However, the Mississippi Supreme Court 
had already found that Miss. Code Ann. 
§ 25-13-ll(e) (Rev. 2003) was constitu- 
tional after an appeal by one of said offi- 
cers; as such, the officers' grievances (in a 
subsequent combined action), were barred 
by the traditional notions of res judicata, 
collateral estoppel, and/or for failure to 
exhaust all administrative remedies and 
the trial court properly granted the Mis- 
sissippi Department of Public Safety's 
Miss. R. Civ. P. 12(b)(6) motion to dismiss. 
Farmer v. State Dep't of Pub. Safety, 907 
So. 2d 981 (Miss. Ct. App. 2005), writ of 
certiorari denied by 910 So. 2d 574, 2005 
Miss. LEXIS 461 (Miss. 2005). 

Finding in favor of the deceased pur- 
chaser's wife and against the seller was 
proper pursuant to Miss. R. Civ. P. 12(b)(6) 
where the seller did not allege that the 
wife transferred or conveyed the money. 
She simply chose not probate her hus- 
band's will when the estate was insolvent. 
Greenville Lumber Co. v. Hammett, 889 
So. 2d 502 (Miss. 2004). 

Trial court did not err in dismissing the 
client's claim against the first lawyer pur- 
suant to Miss. R. Civ. P. 12(b)(6) where he 
had neither personally participated in a 
negligent act nor directly supervised any- 
one who had committed wrongful conduct; 
there was nothing in the record to suggest 
that the attorney had any contact whatso- 
ever with the client, and the client's bare 
allegations that the partners, including 
the first attorney, regularly consulted one 
another on the cases being handled by the 
firm were not supported by the record. 
Keszenheimer v. Boyd, 897 So. 2d 190 
(Miss. Ct. App. 2004), cert, denied, 896 So. 
2d 373 (Miss. 2005). 

Where the car owner's vehicle, a total 
loss, was stored at the premises of a tow- 
ing company, and where the car owner 
had refused to accept the insurer's offer of 



settlement, the car owner had no viable 
claim for intentional infliction of emo- 
tional distress when the insurer refused to 
include towing or storage expenses; the 
car owner did suffer from very severe 
health problems (unrelated to the acci- 
dent), but his claim that the insurer took 
advantage of his condition and engaged in 
bullying tactics, telling him to "take it or 
leave it," with respect to the settlement 
offer, did not constitute conduct that was 
so egregious as to "shock the conscience." 
Thus, the trial court properly granted the 
insurer's motion to dismiss pursuant to 
Miss. R. Civ. P. 12(b)(6). Poindexter v. 
Southern United Fire Ins. Co., 880 So. 2d 
373 (Miss. Ct. App. 2004). 

Court erred in dismissing, pursuant to 
Miss. R. Civ. P. 12(b)(6), a student's per- 
sonal injury lawsuit against a university 
and two of its police officers on the ground 
that the action was barred by the statute 
of limitations; applying the statute as 
written, the student timely filed the law- 
suit. Page V. Univ. of S. Miss., 878 So. 2d 
1003 (Miss. 2004). 

Where two parents were unable to pro- 
duce evidence to rebut the presumption 
that a principal acted in good faith by 
reporting suspected child abuse, a trial 
court properly granted a motion to dismiss 
for failure to state a claim since the prin- 
cipal had immunity in an action alleging 
defamation, slander, libel, intentional in- 
fliction of emotional distress, and false 
light. Howe v. Andereck, 882 So. 2d 240 
(Miss. Ct. App. 2004), cert, denied, 882 So. 
2d 772 (Miss. 2004). 

Dismissal under Miss. R. Civ. P 12(b)(6) 
of plaintiffs' claims was proper as to the 
potential wrongful death claims because 
the child was still alive; therefore, there 
was no claim upon which relief could be 
granted. In re Brantley v. Brantley, 865 
So. 2d 1126 (Miss. 2004). 

County was not estopped from asserting 
the statute of limitations defense in a case 
involving a claim filed under the Missis- 
sippi Tort Claims Act, Miss. Code Ann. 
§§ 11-46-1 to 11-46-23, because the state- 
ments of a county employee regarding the 
payment of medical bills were not fraudu- 
lent since the injured party had failed to 
submit any valid medical claims; there- 
fore, the trial court did not err in dismiss- 



76 



RULES OF CIVIL PROCEDURE 



Rule 12 



ing the case for failing to state a cause of 
action. Williams v. Clay County, 861 So. 2d 
953 (Miss. 2003). 

Trial court did not err in dismissing, 
pursuant to Miss. R. Civ. P. 12(b)(6), a 
patient's complaint against a state hospi- 
tal and physicians for failure to comply 
with Miss. Code Ann. § 11-46-11 of the 
Mississippi Tort Claims Act; the court 
found that (1) the record did not reflect 
that the patient had complied with the 
notice of claim requirements under § 11- 
46-11(3), and (2) the patient waited over 
two years to file his action, which fell 
outside the limitations period. Southern v. 
Miss. State Hosp., 853 So. 2d 1212 (Miss. 
2003). 

Because a citizen failed to file a notice of 
claim against the city pursuant to Miss. 
Code Ann. § 11-46-11(1) of the Mississippi 
Tort Claims Act, and because a document 
agreed to between the citizen and the city 
four years earlier did not serve as proper 
notice, the citizen failed to comply with 
the Act and the action was properly dis- 
missed under Miss. R. Civ. P. 12(b)(6). 
Black V. City of Tupelo, 853 So. 2d 1221 
(Miss. 2003). 

Because parents waited over one year 
after their son's death to file an action 
under the Mississippi Tort Claims Act, 
Miss. Code Ann. §§ 11-46-1 to -23, against 
the State and state agencies, and nothing 
operated to toll the statute of limitations 
under Miss. Code Ann. § 11-46-11, the 
action was time-barred and properly dis- 
missed pursuant to Miss. R. Civ. P. 
12(b)(6). Stockstill v. State, 854 So. 2d 
1017 (Miss. 2003). 

As a hazardous condition allegedly 
causing plaintiff's decedent's death did 
not arise out of the condition of the prop- 
erty created by the owner or existing in a 
concealed state, but was a hazard created 
by the general contractor, the trial court 
properly granted the owner's motion to 
dismiss under Miss. R. Civ. P. 12(b)(6). 
Bevis V. Linkous Constr. Co., 2003 Miss. 
App. LEXIS 773, 856 So. 2d 535 (Miss. Ct. 
App. 2003), cert, denied, 860 So. 2d 1223 
(Miss. 2003). 

Where a shareholder sued a corporation 
that allegedly acted wrongfully to freeze 
her out of her 10 percent ownership inter- 
est, in light of the compelling evidence 



presented by the shareholder on her mis- 
management claim, the trial court did not 
abuse its discretion in denying the corpo- 
ration's motion under Miss. R. Civ. P. 12 
(b)(6) to dismiss that count for failure to 
state a claim. Missala Marine Servs. v. 
Odom, 861 So. 2d 290 (Miss. 2003). 

Defendant's motion to dismiss a breach 
of contract case for failure to state a claim, 
based on an arbitration clause in the par- 
ties' contract, was properly denied; defen- 
dant, by failing to pay its half of the 
arbitration fees as required by the con- 
tract, breached the arbitration provision 
and therefore waived its right to compel 
its protections. Sanderson Farms, Inc. v. 
Gatlin, 848 So. 2d 828 (Miss. 2003). 

Other than the guest's reference to the 
general law on fraud, the guest did not 
present any meaningful arguments and 
no legal support for a civil claim with 
regard to misrepresentations in discovery 
by the store; thus, the trial court properly 
dismissed the guest's claim for fraud un- 
der Miss. R. Civ. P. 12(b) for failure to 
state a claim. Gamble v. Dollar Gen. 
Corp., 852 So. 2d 5 (Miss. 2003). 

Dismissal for failure to state a claim of a 
retired state employee's equal protection 
challenge to the Legislature's establish- 
ment of a supplemental retirement plan 
for legislators was proper; since the differ- 
ent treatment of retired legislators had a 
rational basis in the financial uncertain- 
ties they risked, the proper course in seek- 
ing a remedy was political, not judicial. 
Dillard v. Musgrove, 838 So. 2d 261 (Miss. 
2003). 

Trial court did not err in dismissing 
with prejudice a fraud and misrepresen- 
tation case against an insurer because the 
claim was barred by the six-year statute of 
limitations in Miss. Code Ann. § 722; the 
cause of action was not tolled by Miss. 
Code Ann. § 15-1-67 because the insurer 
did nothing to prevent two insureds from 
discovering their cause of action, Ste- 
phens V. Equitable Life Assur. Soc'y of the 
United States, 850 So. 2d 78 (Miss. 2003). 

Where a cancer patient died while a 
medical malpractice suit he filed was 
pending, and his daughter was substi- 
tuted as plaintiff and was appointed exec- 
utrix of his estate, the trial court erred in 
dismissing the suit for failing to state a 



77 



Rule 12 



MISSISSIPPI COURT RULES 



claim, as the amended complaint filed by 
the daughter on behalf of the estate 
sought recovery for injuries the patient 
suffered during his lifetime. Necaise v. 
Sacks, 841 So. 2d 1098 (Miss. 2003). 

Under subsection (b)(6), it was beyond 
doubt that the father would be unable to 
prove any set of facts in support of his 
allegations against the Department of Hu- 
man Services; as such, dismissal by the 
circuit judge was appropriate and man- 
dated by law. Little v. Miss. Dep't of Hu- 
man Servs., 835 So. 2d 9 (Miss. 2002), 
cert, denied, 540 U.S. 878, 124 S. Ct. 296, 
157 L. Ed. 2d 142 (2003). 

On a motion to dismiss a third party 
complaint against an insurance company 
seeking defense and indemnification in 
the main action against the third party 
plaintiff, the court properly examined the 
third party plaintiff's insurance policy as 
the policy was specifically referred to in 
the third party complaint, the policy was 
central and necessary to the third party 
action, the defendant tendered the entire 
policy, and the policy directly refuted the 
third party complaint's assertions. 
Sennett v. United States Fid. & Guar. Co., 
757 So. 2d 206 (Miss. 2000). 

Hearings. 

Because a citizen's failure to file a notice 
of claim under Miss. Code Ann. § 11-46- 
11(1) of the Mississippi Tort Claims Act 
and the dismissal of the citizen's previous 
lawsuit were not in dispute, and because 
the only remaining questions were ones of 
law, the trial court's error in failing to hold 
a hearing prior to granting the city's mo- 
tion to dismiss under Miss. R. Civ. P. 
12(b)(6) was harmless error only. Black v. 
City of Tupelo, 853 So. 2d 1221 (Miss. 
2003). 

Motions. 

Trial court's grant of the employer's 
motion to dismiss or, in the alternative, 
motion for summary judgment, was 
proper where the letter in question was 
not sufficient to place an affirmative duty 
on the employer to preserve the machine; 
further, the Supreme Court refused to 
recognize a separate tort of negligent spo- 
liation of evidence. Richardson v. Sara Lee 
Corp., 847 So. 2d 821 (Miss. 2003). 



A Rule 12(c) motion is premature until 
all necessary responsive pleadings have 
been filed. Fortenberry v. City of Hatties- 
burg, 758 So. 2d 1023 (Miss. Ct. App. 
2000). 

A moving party has a choice of making a 
M.R.C.P. 4(h) objection to process by (1) 
filing a M.R.C.P. 12(b)(4) or (5) motion 
prior to filing a responsive pleading, (2) by 
asserting other general affirmative de- 
fenses, or (3) by filing them simulta- 
neously therewith; thus, where the issue 
of service of process was raised in the 
defendant's initial responsive pleading, it 
was properly and timely pled. Collom v. 
Senholtz, 767 So. 2d 215 (Miss. Ct. App. 
2000). 

A formal response is not required to 
contest a motion to dismiss as the court 
may examine only the complaint itself in 
determining whether to grant or deny the 
motion. Moore ex rel. City of Aberdeen v. 
Byars, 757 So. 2d 243 (Miss. 2000). 

Necessary parties. 

Trial court did not err in dismissing 
claim for sub-surface trespass and conver- 
sion, due to plaintiff's failure to join all 
affected mineral interest holders. Ladner 
V. Quahty Exploration Co., 505 So. 2d 288 
(Miss. 1987). 

Personal jurisdiction. 

As a company's business contacts with 
the state were not systematic and contin- 
uous, and the personal injury lawsuit filed 
by an individual did not arise from the 
company's contacts in the state, the com- 
pany's motion to dismiss for lack of per- 
sonal jurisdiction was affirmed. Williams 
V. Bud Wilson's Mobile Home Serv., 887 
So. 2d 830 (Miss. Ct. App. 2004), cert, 
denied, 888 So. 2d 1177 (Miss. 2004). 

Notwithstanding Miss. Code Ann. § 93- 
25-9(b), the chancellor could have exer- 
cised jurisdiction over the child support 
question if the father, a resident of Cali- 
fornia, had voluntarily entered a general 
appearance, or filed a responsive pleading 
that effectively waived the issue of juris- 
diction. However, while it was correct that 
the father filed a written answer, with 
leave of court, he filed an amended an- 
swer, which contested jurisdiction; same 
related back to the filing date of the orig- 
inal answer, and despite his written entry 



78 



RULES OF CIVIL PROCEDURE 



Rule 12 



of appearance, and a motion for guardian 
ad litem, the facts did not suffice for a 
general appearance or for personal juris- 
diction over the father for the purpose of 
modif3dng child support. Scaife v. Scaife, 
880 So. 2d 1089 (Miss. Ct. App. 2004). 

Supreme Court of Mississippi finds that 
the majority position is the better rule; 
that is, a Miss. R. Civ. P. 12(b)(2) motion to 
dismiss for lack of personal jurisdiction is 
not converted to a motion for summary 
judgment when the trial court considers 
matters outside the pleadings. Home v. 
Mobile Area Water & Sewer Sys., 897 So. 
2d 972 (Miss. 2004), cert, denied, — U.S. 
— , 125 S. Ct. 1652, 161 L. Ed. 2d 479 
(2005), cert, denied, — U.S. — , 125 S. Ct. 
1662, 161 L. Ed. 2d 480 (2005). 

Ti'ial court erred in dismissing, pursu- 
ant to Miss. R. Civ. R 12, a purchaser's 
action to recover for defects in a mobile 
home; the purchaser's act of filing an 
amended complaint within the relevant 
statute of limitations. Miss. Code Ann. 
§ 63-17-159(6), was sufficient to defeat 
defendants' motion to dismiss, as the 
amended complaint, filed pursuant to 
Miss. R. Civ. P. 15, provided defendants 
with the required notice under Miss. R. 
Civ. P. 4. King v. Am. RV Ctrs., Inc., 862 
So. 2d 558 (Miss. Ct. App. 2003). 

Question of personal jurisdiction ini- 
tially turns on the well-pleaded allega- 
tions of the complaint; on a motion to 
dismiss for lack of personal jurisdiction, 
all allegations of the complaint, together 
with reasonable inferences flowing there- 
from, are accepted as true. R.C. Constr. 
Co. V. National Office Sys., 622 So. 2d 1253 
(Miss. 1993). 

A non-resident defendant may, on a mo- 
tion to dismiss for lack of personal juris- 
diction, litigate the inherent factual ques- 
tions through the use of live testimony or 
affidavits; if the court finds facts that 
sustain his defense, it should dismiss. 
R.C. Constr. Co. v. National Office Sys., 
622 So. 2d 1253 (Miss. 1993). 

Personal injury action against railroad 
should have been dismissed for lack of 
personal jurisdiction; railroad was a non- 
resident corporation not amenable to suit 
in Mississippi, where it had not qualified 
to do business in state and had no agent 
for process in state, nor did record reflect 



name of any other officer, agent, employee, 
or personnel within state. Southern Pac. 
Transp. Co. v. Fox, 609 So. 2d 357 (Miss. 
1992). 

Trial court obtained jurisdiction over 
nonresident defendant by virtue of fact 
that it qualified to do business in Missis- 
sippi and appointed an agent for service of 
process; court grred in dismissing com- 
plaint for lack of personal jurisdiction. 
Read v. Sonat Offshore Drilling, Inc., 515 
So. 2d 1229 (Miss. 1987). 

Pleadings. 

Trial court erred in dismissing plain- 
tiff's action against defendant under Miss. 
R. Civ. P 12(b)(6) and/or (c) because, as 
permitted by Miss. R. Civ. P. 8(a)(2) and 
(e)(2), plaintiff permissibly pleaded a 
claim of both negligence and assault, not- 
withstanding that the claims were incon- 
sistent. Jordan v. Wilson, 5 So. 3d 442 
(Miss. Ct. App. 2008), writ of certiorari 
denied by 11 So. 3d 1250, 2009 Miss. 
LEXIS 130 (Miss. 2009). 

Judgment was properly awarded to 
plaintiffs in their suit against defendants 
for encroachment on their property where 
nothing in defendants' motion for a new 
trial indicated that the chancery court 
erred in not requiring a deraignment of 
title, or in ruling the way it did in the 
absence of a deraignment of title; no Miss. 
R. Civ. P. 12(e) motion was ever filed to 
request that plaintiffs deraign their title. 
Crosswhite v. Golmon, 939 So. 2d 831 
(Miss. Ct. App. 2006). 

In a confirmation of title case, the fail- 
ure to deraign title is not grounds for 
dismissal, but a party may file a Miss. R. 
Civ. P. 12(e) motion to force the complain- 
ant to do so. Crosswhite v. Golmon, 939 
So. 2d 831 (Miss. Ct. App. 2006). 

Products liability suit against cigarette 
companies was properly dismissed on the 
pleadings under Miss. R. Civ. P. 12(c), as 
the Mississippi Product Liability Act, 
Miss. Code Ann. § 11-1-63 (2001), pre- 
cluded all product liability actions against 
tobacco companies. Lane v. R. J. Reynolds 
Tobacco Co., 853 So. 2d 1144 (Miss. 2003). 

Customer who suffered injuries after 
voluntarily consuming alcohol is not part 
of the protected class of Miss. Code Ann. 
§ 67-3-73; therefore, a casino's motion to 
dismiss a negligence action was properly 



79 



Rule 12 



MISSISSIPPI COURT RULES 



granted since there was no liability under 
either § 67-3-73 or Miss. Code Ann. § 67- 
1-83. Bridges v. Park Place Entm't, Inc., 
860 So. 2d 811 (Miss. 2003). 

Trial court did not err in refusing to 
grant a default judgment based on defen- 
dant's alleged failure to answer the com- 
plaint within 30 days; defendant had 
placed the answer in the mail in a timely 
fashion and the plaintiff could not refuse 
to accept it and then claim defendant had 
not answered. Slaydon v. Hansford, 830 
So. 2d 686 (Miss. Ct. App. 2002). 

The plaintiffs were properly denied 
leave to amend the complaint on a motion 
to dismiss where the proposed amend- 
ment was futile in the light of statutory 
and case law pertaining to their claim. 
Jones V. Lovett, 755 So. 2d 1243 (Miss. Ct. 
App. 2000). 

Service of process. 

Pursuant to Miss. R. Civ. P 12(h)(1), 
certain defendants waived the defenses of 
insufficiency of service of process and in- 
sufficiency of process by omitting these 
defenses from their answer and motion to 
dismiss. Therefore, under Miss. R. Civ. P. 
54(b) and 58, the order dismissing those 
defendants fully adjudicated the case as to 
all parties and it was a final, appealable 
judgment, Sauvage v. Meadowcrest Living 
Ctr., LLC, 28 So. 3d 589 (Miss. 2010). 

Three cases were properly dismissed for 
insufficiency of process and insufficiency 
of service of process, under Miss. R. Civ. P. 
12(b)(4)-(5), where the process issued to 
defendants was deficient and not in sub- 
stantial compliance with Miss. R. Civ. P. 
4(b), a pro se response by one defendant 
might have constituted an appearance un- 
der Miss. R. Civ. P. 55, but was not a valid 
answer because it did not comport with 
the filing requirement of Miss. R. Civ. P. 
5(d). Fletcher v. Limeco Corp., 996 So. 2d 
773 (Miss. 2008), remanded by 32 So. 3d 
429, 2010 Miss. LEXIS 182 (Miss. 2010). 

In a medical malpractice suit, a hospital 
did not waive its affirmative defense of 
insufficient service of process by the fail- 
ure of the hospital to include the affirma- 
tive defense in a subsequent motion for a 
change or venue or by its active participa- 
tion in the litigation. Lucas v. Baptist 
Mem. Hosp. - N. Miss., Inc., 997 So. 2d 226 
(Miss. Ct. App. 2008). 



In a medical malpractice/wrongful 
death case, defendant doctor's motion to 
dismiss for failure to timely effect service 
of process under Miss. R. Civ. P 4(h) was 
properly denied because the trial court 
found good cause for the failure where 
plaintiff's counsel retained local counsel, 
who was to effect service of process; where 
local counsel failed to do so; where counsel 
learned of local counsel's failure on day 
118, took immediate action, and effected 
service on day 121; and where local coun- 
sel withdrew from the case. Foss v. Wil- 
liams, 993 So. 2d 378 (Miss. 2008). 

Where a county obtained an injunction 
to allow its surveyor to enter landowners' 
property, the circuit court did not have 
personal jurisdiction over the landowners 
and thus the injunction was improperly 
granted because there was no proof that 
the landowners had been properly served 
with process. Blakeney v, Warren County, 
973 So. 2d 1037 (Miss. Ct. App. 2008). 

Claimant's argument that the driver's 
active participation in the underljdng lit- 
igation constituted a tacit waiver of the 
service of process defense was without 
merit because the defense was not waived 
by the mere submission of other pleadings 
in the case, nor even by participation in a 
trial on the merits, and the error was 
preserved until its resolution by the court. 
Page V. Crawford, 883 So. 2d 609 (Miss. 
Ct. App. 2004). 

Subject matter jurisdiction. 

Motion for relief under Miss. R. Civ. P 
60(b)(4) was properly dismissed because 
an alleged descendant waited more than 
six years to challenge an adverse ruling in 
an ejectment action filed against a record 
title holder; there was no reason for his 
failure to file an appeal or his decision to 
wait so long to file the motion, and more- 
over there was no basis for arguing that 
the chancery court lacked subject matter 
jurisdiction over a property case. 
Netterville v. Weyerhaeuser Co., 963 So. 
2d 38 (Miss. Ct. App. 2007). 

Where appellant filed an appeal of the 
chancery court's order finding a prescrip- 
tive easement across his property for an 
access road, there was no was justifiable 
basis for appellant's argument that a 
chancery court did not have jurisdiction 
over matters involving property; such au- 



80 



RULES OF CIVIL PROCEDURE 



Rule 12 



thority was conferred by Miss. Const. Art. 
6, § 160, history, and precedent. Graves v. 
Dudley Maples, L.P., 950 So. 2d 1017 
(Miss. 2007). 

The plaintiffs were entitled to have 
their breach of contract action transferred 
from the chancery court to the circuit 
court as the action was legal in nature and 
as their right to a jury trial would be 
infringed upon if the action was heard in 
chancery court. Burnette v. Hartford Un- 
derwriters Ins. Co., 770 So. 2d 948 (Miss. 
2000). 

Chancellor did not err in declining ju- 
risdiction in child custody dispute where, 
although Mississippi was the new "home 
state" of children involved, chancery court 
in Arkansas retained continuing jurisdic- 
tion over the parties by virtue of having 
entered the original decree. Johnson v. 
ElHs, 621 So. 2d 661 (Miss. 1993). 

Summary judgment. 

In a fraud action, dismissal under Miss. 
R. Civ. P. 12(b)(6) was improper because 
the trial court considered matters outside 
the pleadings when it took into account a 
pretrial settlement agreement. Having 
done so, the trial court was required to 
convert the motion into a Miss. R. Civ. R 
56 motion for summary judgment, which 
it failed to do. State v. Bayer Corp., 32 So. 
3d 496 (Miss. 2010). 

When a party introduces evidence out- 
side of the pleadings in defense or support 
of a Miss. R. Civ. R 12(b)(6) motion, the 
motion is converted into one for summary 
judgment. Sullivan v. Tullos, 20 So. 3d 1 
(Miss. Ct. App. 2008), reversed by, re- 
manded by 19 So. 3d 1271, 2009 Miss. 
LEXIS 501 (Miss. 2009). 

Even though a motion to dismiss should 
have been treated as a motion for sum- 
mary judgment because facts outside of 
the pleadings were considered, the error 
was harmless because, even though an 
employment contract attached to the mo- 
tion was considered, another almost iden- 
tical contract was referenced in the plead- 
ings. Therefore, a chancellor did not 
become privy to any knowledge by virtue 
of one contract that he did not already 
have from the other contract. Winters v. 
Calhoun County Sch. Dist., 990 So. 2d 238 
(Miss. Ct. App. 2008). 



In an action alleging defendants pub- 
lished slanderous statements against 
plaintiffs on a radio talk show program, 
the trial court's exclusion of the radio 
show transcript allowed the trial court to 
refine its review of a motion for summary 
judgment based only on the pleadings and 
dismiss the complaint pursuant to Miss. 
R. Civ. R 12(b)L6). Chalk v. Bertholf, 980 
So. 2d 290 (Miss. Ct. App. 2007). 

In her negligence action against a 
homeowner, decided in the homeowner's 
favor on summary judgment, on appeal, 
the worker asserted that Miss. R. Civ. P. 
8(c) clearly set forth that the defense of 
statute of limitations was an affirmative 
defense which had to be set forth in re- 
sponsive pleadings and that Miss. R. Civ. 
P. 12(b) required every defense to be as- 
serted in responsive pleadings, except the 
seven which could be made by motion, and 
that the statute of limitations defense was 
not included therein; however, the defense 
of statute of limitations was proper for 
summary judgment where there existed 
no genuine issues of material fact on the 
issue. Robertson v. Moody, 918 So. 2d 787 
(Miss. Ct. App. 2005). 

Letters did show that the father's attor- 
ney failed to serve notice of the subpoena 
immediately under Miss. R. Civ. P. 45, but 
the father's attorney's failure to follow 
correct procedure did not rise to the level 
of abuse of process. The trial court prop- 
erly granted summary judgment in favor 
of the father and his attorney as to the 
abuse of process claim; moreover, the 
mother's argument that the father was 
required to hand deliver the notice to her 
attorney under Miss. R. Civ. P. 5(b) was 
without merit, as service was allowed by 
mail under the plain language of Miss. R. 
Civ. R 5(b). Ayles v. Allen, 907 So. 2d 300 
(Miss. 2005). 

Dismissal of the claimant's petition for 
declaratory relief in an action involving 
the liquidation of an insurance company 
was improper pursuant to Miss. R. Civ. P. 
12(c) and Miss. R. Civ. P. 56 where the 
trial judge erred in converting a motion 
for judgment on the pleadings into a mo- 
tion for summary judgment without giv- 
ing the claimants 10-days notice of that 
intention. Huff-Cook, Inc. v. Dale, 913 So. 
2d 988 (Miss. 2005). 



81 



Rule 12 



MISSISSIPPI COURT RULES 



Langxiage of Miss. R. Civ. P. 12 granting 
the respondent to a motion to dismiss that 
was subsequently converted into one for 
summary judgment an opportunity to 
present further material, is not self-exe- 
cuting; litigant desiring to avail herself of 
the right to present more evidentiary ma- 
terial has an affirmative duty to timely 
raise the issue with the trial court or be 
deemed to have waived objection to the 
court proceeding on the motion. 
Champluvier v. Beck, 909 So. 2d 1061 
(Miss. 2004). 

Where defendant waited for twenty- 
seven years before suing doctors who neg- 
ligently operated on his leg causing a 
misalignment of his femur, the doctors 
filed motions to dismiss the suit as barred 
by the statute of limitations. The circuit 
court considered some material outside of 
the pleadings, transformed the doctors' 
motions into a motion for summary judg- 
ment, and properly granted the motions. 
Russell V. Williford, 907 So. 2d 362 (Miss. 
Ct. App. 2004), cert, denied, 910 So. 2d 
574 (Miss. 2005). 

Appellate court reviewed defendants' 
Miss. R. Civ. P. 12(b)(6)motion to dismiss 
under the summary judgment standard as 
the trial court considered exhibits, includ- 
ing deposition testimony, to the motion 
along with defendants' answer. Gulledge 
V. Shaw, 880 So. 2d 288 (Miss. 2004). 

Trial court properly dismissed claims 
against a contractor on summary judg- 
ment, but improperly labeled its decision 
as a dismissal for failure to state a claim 
under Miss. R. Civ. P. 12(b)(6); as the court 
made its decision after reviewing the com- 
plaint, the answer, the motion to dismiss, 
the response to it, and the accompanying 
exhibits, its decision was properly labeled 
a summary judgment under Miss. R. Civ. 
P. 56. Rein v. Benchmark Constr. Co., — 
So. 2d — , 2003 Miss. LEXIS 282 (Miss. 
June 12, 2003), opinion withdrawn by, 
substituted opinion at, remanded in part 
by 865 So. 2d 1134, 2004 Miss. LEXIS 180 
(Miss. 2004). 

Defendant's motion was a motion for 
summary judgment rather than a motion 
to dismiss for failure to state a claim or for 
judgment on the pleadings since the mo- 
tion, even though it was not accompanied 
by affidavits or responses to discovery. 



dealt with the merits of the plaintiff"'s 
case. Hartford Cas. Ins. Co. v. Halliburton 
Co., 826 So. 2d 1206 (Miss. 2001). 

When a party is given an opportunity to 
amend and the trial court states that 
dismissal will occur otherwise, the failure 
to amend and the seeking of an appeal 
abandons the opportunity to amend and, 
once the period allowed for an amendment 
passes and the party pursues an appeal, 
the partial summary judgment, partial 
only because the opportunity to amend 
remained open, becomes a complete and 
final judgment. Hobgood v. Koch Pipeline 
Southeast, Inc., 769 So. 2d 838 (Miss. Ct. 
App. 2000), cert, denied, 531 U.S. 1073, 
121 S. Ct. 766, 148 L. Ed. 2d 666 (2001). 

The trial judge properly complied with 
subsection (b) of this rule and Rule 56(c) 
in treating a motion to dismiss filed by the 
defendants as a motion for summary judg- 
ment; the plaintiff and her counsel were 
made aware that the judge reviewed a 
videotape of the incident at issue and the 
judge postponed making his final ruling 
for over three months, granting ample 
time for the plaintiff to respond and 
gather additional discovery, notwith- 
standing that no specific decree regarding 
the conversion of the motion was made. 
Jones V. Jackson Pub. Schs., 760 So. 2d 
730 (Miss. 2000). 

The language of the rule granting a 
respondent to a motion to dismiss subse- 
quently converted to a summary judg- 
ment motion an opportunity to present 
further material is not self-executing; a 
litigant desiring to avail herself of the 
right to present more evidentiary material 
has an affirmative duty to timely raise the 
issue with the trial court or be deemed to 
have waived objection to the court pro- 
ceeding on the motion. Koestler v. Missis- 
sippi College, 749 So. 2d 1122 (Miss. Ct. 
App. 1999). 

Due to extensive court filings, including 
interrogatory responses and other discov- 
ery tools, court considered that matters 
outside the pleadings had been presented 
and therefore action was reviewed as a 
summary judgment motion, despite plain- 
tiff's assertions of error indicating that 
appeal was from a dismissal for failure to 
state a claim upon which relief can be 
granted. Westbrook v. City of Jackson, 665 
So. 2d 833 (Miss. 1995). 



82 



RULES OF CIVIL PROCEDURE 



Rule 12 



Plaintiff should have been allowed time 
to file affidavits or other pertinent mate- 
rial in opposition to motion for summary 
judgment; since trial court considered 
"matters outside the pleadings" in ruling 
on defendant's motion for judgment on the 
pleadings, M.R.C.P. Rule 12(c) required 
that plaintiff be given an opportunity to 
present all pertinent material, and since 
plaintiff's request was timely made, it 
should have been allowed. Cunningham v. 
Lanier, 555 So. 2d 685 (Miss. 1989). 

Defendant's answer and amended an- 
swer each raised matters of affirmative 
defense, and thus plaintiff was not clearly 
entitled to judgment, and trial court prop- 
erly denied plaintiff's motion for judgment 
on the pleadings. Millican v. Turner, 503 
So. 2d 289 (Miss. 1987). 

Issues of res judicata resulting from the 
entire course of proceedings and final 
judgment of dismissal entered in plain- 
tiff's previous lawsuit meant that there 
were no factual points to be developed in 
the subsequent one. The circuit court thus 
correctly exercised authority granted it 
under M.R.C.P. Rule 12(b) and considered 
defendants' motion to dismiss as one for 
summary judgment. Walton v. Bourgeois, 
512 So. 2d 698 (Miss. 1987). 

Venue. 

When a defendant is sued in both a 
paternity and support proceeding, he has 
right to have case heard in county in 
which he resides, if he is a resident of 
Mississippi; defendant must timely assert 
this right via a M.R.C.P. Rule 12(b)(3) 
motion, and his failure to do so amounts to 
waiver. Belk v. State Dep't of Pub. Wel- 
fare, 473 So. 2d 447 (Miss. 1985). 

Waiver. 

In a negligence case, the defense of lack 
of personal jurisdiction was waived under 
Miss. R. Civ. P. 12(h)(1) because an out-of- 
state resident made a general appearance 
when he sought relief from a default judg- 
ment without raising that objection; 
therefore, the case was improperly dis- 
missed for a failure timely serve process. 
Courtney v. McCluggage, 991 So. 2d 642 
(Miss. Ct. App. 2008). 

Custody award of the mother's and fa- 
ther's child to the father was appropriate, 
in part because the mother waived her 



jurisdictional arguments when she failed 
to timely seek resolution of the issue and 
when she participated in the hearing 
without first seeking an adjudication of 
her jurisdictional issue. Price v. McBeath, 
989 So. 2d 444 (Miss. Ct. App. 2008). 

Even if a buyer from a tax sale was a 
necessary and indispensable party under 
Miss. R. Civ. P. 19 to a proceeding where 
the redemption period in Miss. Code Ann. 
§ 27-45-3 was extended for 60 days, the 
buyer's successor in interest was proce- 
durally barred from bringing its Miss. R. 
Civ, P. 19 objection on appeal since the 
issue was not raised. The issue was not 
heard sua sponte in accordance with Shaw 
V. Shaw, 603 So. 2d 287 (Miss. 1992), 
because the buyer was notified by letter of 
the foreclosure sale and the possibility 
that the tax redemption period could be 
extended, this knowledge was imputed to 
the successor in interest, and neither the 
buyer nor the successor in interest chose 
to challenge the joinder issue until after 
the conclusion of the trial court proceed- 
ings. Marathon Asset Mgmt., LLC v. Otto, 
977 So. 2d 1241 (Miss. Ct. App. 2008). 

In a wrongful death matter arising out 
of a high speed chase that occurred in 
Mississippi, an Alabama city, its police 
chief, and an Alabama city police officer all 
filed responsive pleadings, and then filed 
motions to dismiss 20 months later, alleg- 
ing lack of personal jurisdiction; the three 
defendants waived the defense. City of 
Cherokee v. Parsons, 944 So. 2d 886 (Miss. 
2006). 

When a New York commuter van com- 
pany filed its answer and defenses in the 
wrongful death action of Mississippi resi- 
dents following an accident that occurred 
in New York, the company did not waive 
its defense of lack of personal jurisdiction 
under Miss. R. Civ. P. 12(b)(2) when it 
included a motion to dismiss for lack of 
personal jurisdiction, although the com- 
pany filed 21 months after being served 
with process, thereby failing to meet the 
thirty-day answer requirement of Miss. R. 
Civ. P. 12(a). Miss. R. Civ. P. 12(h) governs 
the waiver of defenses and while Rule 
12(h) provides for certain circumstances 
in which a defense may be waived, it 
creates no overlap of the 30-day answer 
requirement of Miss. R. Civ. P. 12(a) and 



83 



Rule 13 



MISSISSIPPI COURT RULES 



defenses that are coupled with an un- 
timely answer. Rockaway Commuter 
Line, Inc. v. Denham, 897 So. 2d 156 
(Miss. 2004). 

Where appellant's counsel appeared for 
trial and participated by cross-examining 
appellee and by calling a witness during 
her case-in-chief, but appellant did not 
object to or challenge any irregularities in 
the service of process, her failure to raise 
these challenges in the court below 
waived these defenses under Miss. R. Civ. 
P. 12(h)(1). Venegas v. Gurganus, 911 So. 
2d 562 (Miss. Ct. App. 2005). 

In a contempt proceeding on the hus- 
band's failure to pay child support, the 
affirmative defense of the statute of limi- 
tations was not waived because, although 
the husband filed an answer, no such 
pleading was required under Miss. R. Civ. 
P. 12(b) and 81(d)(2), (4); thus, the hus- 
band had the right to raise the defense at 
any stage and the statute of limitations 
would bar any claims filed seven years 
after the youngest child reached the age of 
21 pursuant to Miss. Code Ann. § 15-1-59. 
Miss. Dep't of Human Servs. v. Guidry, 
830 So. 2d 628 (Miss. 2002). 

Respondent waived defenses of lack of 
personal jurisdiction or insufficiency of 
service of process where she failed to as- 
sert them by motion within prescribed 20 
days, or in a responsive pleading or 
amendment thereof, and default judg- 
ment was properly entered where she 
failed to plead or otherwise defend a claim 
asserted against her. Terrell v. Mississippi 
Bar, 635 So. 2d 1377 (Miss. 1994). 

Divorce defendant could not raise for 
the first time on appeal that decree was 
void for insufficiency of process and lack of 
personal jurisdiction; because defendant 
waited seven years before raising such a 
defense, his claim was waived. Manning v. 
Tanner, 594 So. 2d 1164 (Miss. 1992). 

Objections to venue are waived if not 
timely asserted. Sawyer v. Illinois Cent. 
G.R.R., 606 So. 2d 1069 (Miss. 1992). 



Venue disputes must be settled early on, 
as a defendant waives any objection to 
venue unless he asserts it early on; if 
venue is proper when and where suit is 
filed, it may not be ousted by later events. 
Fhght Line v. Tanksley, 608 So. 2d 1149 
(Miss. 1992). 

Where defendant's answer asserted 
that court lacked jurisdiction over him, 
the fact that he did not label this assertion 
an "affirmative defense" was of no mo- 
ment, and where he followed this with a 
motion to dismiss for lack of personal 
jurisdiction, his jurisdictional challenge 
was not waived. Jones v. Chandler, 592 So. 
2d 966 (Miss. 1991). 

Defendant waived his defense of insuf- 
ficiency of service of process, where his 
answer made no mention of any such 
defense, and it was only in response to 
plaintiff's summary judgment motion that 
defendant finally raised his defense. 
Young V. Huron Smith Oil Co., 564 So. 2d 
36 (Miss. 1990). 

Lack of in personam jurisdiction is a 
matter that may be waived if not timely 
asserted. Scribner v. Scribner, 556 So. 2d 
350 (Miss. 1990). 

Defendant waived defense of improper 
venue when he failed to assert it in his 
motion to quash and set aside decree. 
Lowrey v. Will of Smith, 543 So. 2d 1155 
(Miss. 1989). 

Divorce defendant's motion for contin- 
uance under Soldiers' and Sailors' Civil 
Relief Act did not waive his defense of lack 
of in personam jurisdiction; his motion 
amounted to no more than an application 
to stay proceedings and was not to be 
construed as an appearance, nor was his 
subsequent pleading reasserting this de- 
fense to be considered as a waiver of that 
defense. O'Neill v. O'Neill, 515 So. 2d 1208 
(Miss. 1987). 

Objections to venue are deemed waived 
when they are not asserted in defendant's 
answer or in a M.R.C.P. Rule 12 motion. H 
& W Transf. & Cartage Serv., Inc. v. Grif- 
fin, 511 So. 2d 895 (Miss. 1987). 



Rule 13. Counter-claim and cross-claim. 

(a) Compulsory counter-claims. A pleading shall state as a counter-claim 
any claim v^hich at the time of serving the pleading the pleader has against 
any opposing party if it arises out of the transaction or occurrence that is the 



84 



RULES OF CIVIL PROCEDURE Rule 13 

subject matter of the opposing party's claim and does not require for its 
adjudication the presence of third parties over whom the court cannot acquire 
jurisdiction. But the pleader need not state the claim if: 

(1) at the time the action was commenced the claim was the subject of 
another pending action; or 

(2) the opposing party brought suit upon his claim by attachment or other 
process by which the court did not acquire jurisdiction to render a personal 
judgment on that claim, and the pleader is not stating ajiy counter-claim under 
this Rule 13; or 

(3) the opposing party's claim is one which an insurer is defending. 

In the event an otherwise compulsory counter-claim is not asserted in 
reliance upon any exception stated in paragraph (a), re-litigation of the claim 
may nevertheless be barred by the doctrines of res judicata or collateral 
estoppel by judgment in the event certain issues are determined adversely to 
the party electing not to assert the claim. 

(b) Permissive counter-claims. A pleading may state as a counter-claim any 
claim against an opposing party not arising out of the transaction or occur- 
rence that is the subject matter of the opposing party's claim. 

(c) Counter-claim exceeding opposing claim. A counter-claim may or may not 
diminish or defeat the recovery sought by the opposing party. It may claim 
relief exceeding in amount or different in kind from that sought in the pleading 
of the opposing party. 

(d) Counter-claim against the state of Mississippi. These rules shall not be 
construed to enlarge beyond the limits fixed by law the right to assert 
counter-claims or to claim credits against the State of Mississippi, a political 
subdivision, or an officer in his representative capacity or agent of either. 

(e) Counter-claim maturing or acquired after pleading. A claim which either 
matured or was acquired by the pleader after serving his pleading may, with 
the permission of the court, be presented as a counter-claim by supplemental 
pleading. 

(D Omitted counter-claim. When a pleader fails to set up a counter-claim 
through oversight, inadvertence, or excusable neglect, or when justice re- 
quires, he may by leave of court set up the counter-claim by amendment on 
such terms as the court deems just. 

(g) Cross-claim against co party. A pleading may state as a cross-claim any 
claim by one party against a co-party arising out of the transaction or 
occurrence that is the subject matter either of the original action or of a 
counter-claim therein or relating to any property that is the subject matter of 
the original action. Such cross-claim may include a claim that the party 
against whom it is asserted is or may be liable to the cross-claimant for all or 
part of the claim asserted in the action against the cross-claimant. 

(h) Claims exceeding court's jurisdiction. Upon the filing in the county court 
by any party of a counter-claim or cross-claim which exceeds the jurisdictional 
limits of that court, and upon the motion of all parties filed within twenty days 
after the filing of such counter-claim or cross-claim, the county court shall 
transfer the action to the circuit or chancery court wherein the county court is 
situated and which would otherwise have jurisdiction. 

85 



Rule 13 



MISSISSIPPI COURT RULES 



(i) Joinder of additional parties. Persons other than those made parties to 
the original action may be made parties to a counter-claim or cross-claim in 
accordance with the provisions of Rules 19 and 20. 

(j) Separate trials; separate judgment. If the court orders separate trials as 
provided in Rule 42(b), judgment on a counter-claim or cross-claim may be 
rendered in accordance with the terms of Rule 54(b) when the court has 
jurisdiction so to do, even if the claims of the opposing parties have been 
dismissed or otherwise disposed of. 

(k) Appealed actions. When an action is commenced in the justice court or in 
any other court which is not subject to these rules and from which an appeal 
for a trial de novo lies to a court subject to these rules, any counter-claim made 
compulsory by subdivision (a) of this rule shall be stated as an amendment to 
the pleading within thirty days after such appeal has been perfected or within 
such further time as the court may allow; and other counter-claims and 
cross-claims shall be permitted as in an original jurisdiction action. When a 
counter-claim or cross-claim is asserted by a defendant in such an appealed 
case, the defendant shall not be limited in amount to the jurisdiction of the 
lower court but shall be permitted to claim and recover the full amount of its 
claim irrespective of the jurisdiction of the lower court. 

COMMENT 



The purpose of Rule 13 is to grant the 
court broad discretion to allow claims to 
be joined in order to expedite the resolu- 
tion of all the controversies between the 
parties in one suit and to eliminate the 
inordinate expense occasioned by circuity 
of action and multiple litigation: 

It is, and should be, a paramount con- 
cern of the judiciary to prevent multiple 
suits where one suit will suffice. There is a 
tendency, perhaps, to forget that one who 
undergoes the rigors of an action, with all 
of its traumatic impact, loss of time, delay, 
substantial expense and disruption of his 
affairs, with consequent appeals and pos- 
sible retrials and still other appeals, 
should be spared having to do this more 
often than is strictly necessary. Even the 
successful party after bearing the expense 
of one trial and of one appeal is, in many 
instances, hardly a winner. Magee v. Grif- 
fin, 345 So.2d 1027, 1032 (Miss.1977). 

Under Rule 13(a), some claims may now 
be asserted as counter-claims which here- 
tofore could have been interposed only by 
way of recoupment or set-off at law. See 
Miss. Code Ann. § 11-7-63 (1972), Myers 
u. Estell, 47 Miss. 4 (1872), or by cross-bill 
in equity. See Miss. Code Ann. § 11-5-37 



(1972); Stewart v. Stebbins, 30 Miss. 66 
(1855). Rule 13(a), however, makes it im- 
material whether the counter-claim is le- 
gal or equitable, See Miss. Code Ann. 
§ 11-5-37 (1972), or in contract or in tort, 
Miss. Code Ann. § 11-7-36 (1972), or even 
whether it has any connection whatever 
with the plaintiff's claim. See Dewees v. 
Dewees, 55 Miss. 315 (1877), Oxford v. 
Spears, 228 Miss. 433, 87 So.2d 914 
(1956). A counter-claim is compulsory if 
there is any logical relation between the 
original claim and the counter-claim. Un- 
der 13(b), all other claims may be brought 
by a party in one action. 

Under Rule 13(c), a counter-claim may 
ask for more or different relief than that 
sought by the opposing party. Cf Miss. 
Code Ann. §§ 11-7-63 - 69 (1972), Johnson 
V. Richardson, 234 Miss. 849, 108 So.2d 
194 (1959). Also, under Rule 13 additional 
parties may be brought in to defend 
against the counter-claim where there 
presence is necessary for the granting of 
complete relief 

Rule 13(g), providing for cross-claims, is 
essentially equivalent to past Mississippi 
chancery procedure, see Miss. Code Ann. 
§ 11-5-37 (1972), and permits accelera- 
tion of liability by the cross-claim. 



86 



RULES OF CIVIL PROCEDURE 



Rule 13 



Rule 13(h) tracks the provisions of Miss. 
Code Ann. § 9-9-21 (Supp. 1987) regard- 
ing the jurisdiction of counter-claims in 
county court. The county court retains 
jurisdiction of a suit when a counter-claim 
is brought which exceeds the jurisdic- 
tional amount for original suits in county 
court unless a motion to transfer is made 
by all parties as described in Rule 13(h). 

If a counter-claim or cross-claim has 
been properly asserted, then under 
M.R.C.P. 13(i) any person whose joinder in 
the original action would have been possi- 
ble (pursuant to M.R.C.P. 20, permissible 
joinder) may be added as a party to the 
counter-claim or cross-claim. M.R.C.P. 
13(i) is identical to Federal Rule 13(h). 

Because of the liberal provisions in Rule 
13 for counter-claims and cross-claims, 
the trial court may be faced with many 



disparate issues or claims in a single ac- 
tion. Should the court determine that one 
or more of the counter-claims or cross- 
claims should be handled separately to 
avoid prejudice or to promote convenience 
and economy. Rule 13(j) authorizes the 
judge to invoke Rule 43(b) and order sep- 
arate trials of the claims. M.R.C.P. 13(j) is 
identical to Federal Rule 13(i). 

Rule 13(k) governs actions appealed for 
trials de novo from lower courts in which 
there are no compulsory counter-claim 
provisions. Under this rule the defendant 
in the trial de novo must assert compul- 
sory counter-claims within thirty days af- 
ter the appeal has been perfected. In pur- 
suing his counter-claim or cross-claim the 
defendant is not limited to the jurisdic- 
tional ceiling of the court below. 

[Amended effective March 1, 1989.1 



JUDICIAL DECISIONS 



Construction. 

Compulsory counterclaims. 
Scope of a cross-claim. 
Waiver. 

Construction. 

Federal district court dismissed, on 
grounds of res judicata, the claims of a 
foreign corporation, even though the prior 
dismissal of its claims by a State court had 
been erroneous where the corporation had 
not been authorized to do business at that 
time under Miss. Code Ann. § 79-4- 
15.02(a), but the State court should have 
stayed the proceedings under Miss. Code 
Ann. § 79-4-15.02(c). Cuba Timber Co., 
Plaintiff v. Boswell, 339 F. Supp. 2d 773 
(S.D. Miss. 2004). 

Where defendant in partition suit filed 
answer also claiming for partition, but 
never served a cross-claim upon her co- 
defendants, she was required to file and 
serve a cross-claim before she could obtain 
relief from a co-defendant. Johnson v. 
Franklin, 481 So. 2d 812 (Miss. 1985). 

Compulsory counterclaims. 

Where defendant in an automobile neg- 
ligence case failed to file an answer to 
plaintiff's complaint but filed a counter- 
claim, the trial court did not err in grant- 
ing plaintiff's motion to dismiss because 
the submission of a counterclaim without 



filing a responsive pleading was procedur- 
ally improper. A counterclaim was a claim 
asserted against a party in a responsive 
pleading; because defendant failed to file 
an answer to plaintiff's complaint, his 
counterclaim was not properly before the 
trial court. Keyes v. Berry, 995 So. 2d 861 
(Miss. Ct. App. 2008). 

Although the company argued that 
Miss. R. Civ. P. 13(a) applied to its coun- 
terclaim against the corporation, because 
both it and the corporation were repre- 
sented by their respective insurance com- 
panies in the prior suit. Fed. R. Civ. P. 13 
applied to the company's counterclaim, 
because the prior suit was pending in the 
federal court, and Fed. R. Civ. P. 13 had no 
insurer exception; the company's claim 
should have been brought as a compulsory 
counterclaim in the prior suit rather than 
as an independent state court claim; the 
company's claim fit squarely within the 
definition of a compulsory counterclaim 
set forth by Fed. R. Civ. P 13(a). Tyler 
Marine Servs. v. Aqua Yacht Harbor Corp., 
920 So. 2d 493 (Miss. Ct. App. 2006). 

Because a net lease agreement at issue 
between a partnership and a corporation 
arose from the same complex business 
arrangement made by the parties that 
were being litigated in the partnership's 
circuit court action against the corpora- 



87 



Rule 14 



MISSISSIPPI COURT RULES 



tion, the claims asserted by the corpora- 
tion in its chancery court action should 
have been submitted as a compulsory 
counterclaim against the partnership in 
the partnership's circuit court action. 
Copiah Med. Assocs. v. Miss. Baptist 
Health Sys., 898 So. 2d 656 (Miss. 2005). 

Interpleader action was available to law 
firm to facilitate payment of the attorney 
fees in its possession into the registry of 
the court; however, the action for inter- 
pleader should have been brought as a 
compulsory counterclaim to pending liti- 
gation in another county between the 
same parties involving the same attorney 
fees. Scruggs, Millette, Bozeman & Dent, 
P.A. V Merkel & Cocke, P.A, 804 So. 2d 
1000 (Miss. 2001). 

In asserting their compulsory counter- 
claim argument, plaintiffs were asserting 
a claim in bar which was in the nature of 
an affirmative defense; as such, plaintiffs 
had burden of proof at trial as well as on 
summary judgment. Atkinson v. National 
Bank of Commerce, 530 So. 2d 163 (Miss. 
1988). 

Scope of a cross-claim. 

Because the agreement at issue arose 
from the same complex business arrange- 
ment made by the parties, the claims 
asserted in the chancery court action 
should have been submitted as a compul- 
sory counterclaim in the circuit court ac- 



tion. Copiah Med. Assocs. v. Miss. Baptist 
Health Sys., — So. 2d — , 2004 Miss. 
LEXIS 463 (Miss. May 6, 2004), opinion 
withdrawn by, substituted opinion at, re- 
manded by 898 So. 2d 656, 2005 Miss. 
LEXIS 259 (Miss. 2005). 

Defendant insurance agent's motion for 
leave to file a cross-claim against defen- 
dant insurer was properly denied because 
the far-reaching allegations of the pro- 
posed cross-claim were only tangential to 
the subject matter of the complaint, thus, 
the proposed cross-claim exceeded the def- 
inition of a cross-claim under Miss. R. Civ. 
P. 13(g). Edwards v. Jackson Nat'l Life Ins. 
Co., 860 So. 2d 842 (Miss. Ct. App. 2003). 

Waiver. 

Grant of summary judgment in favor of 
the appellee neighbors in their boundary- 
dispute action was proper because the 
appellant neighbor had waived the de- 
fense of adverse possession, Miss. R. Civ. 
P. 13(f). Appellant offered no reason for 
the six-month delay between the filing of 
her answer and her motion to amend the 
answer to raise the affirmative defense of 
adverse possession; further, the affirma- 
tive defense of adverse possession would 
have existed prior to the filing of the 
lawsuit, so it was not a fact that would 
have been found only through discovery. 
Chariot V Henry, 45 So. 3d 1237 (Miss. Ct. 
App. 2010). 



Rule 14. Third-party practice. 

(a) When defendant may bring in third party. After commencement of the 
action and upon being so authorized by the court in v^hich the action is pending 
on motion and for good cause shown, a defending party may cause a summons 
and complaint to be served upon a person not a party to the action who is or 
may be liable to him for all or part of the plaintiff's claim against him. The 
person served with the summons and third-party complaint, hereinafter called 
the third-party defendant, shall make his defenses to the third-party plaintiff's 
claim as provided in Rule 12 and his counter-claims against the third-party 
plaintiff and cross-claims against other third-party defendants as provided in 
Rule 13. The third-party defendant may assert against the plaintiff any 
defenses which the third-party plaintiff has to the plaintiff's claim. The 
third-party defendant may also assert any claim against the plaintiff arising 
out of the transaction or occurrence that is the subject matter of the plaintiff's 
claim against the third-party plaintiff. The plaintiff may assert any claim 
against the third-party defendant arising out of the transaction or occurrence 
that is the subject matter of the plaintiff's claim against the third-party 



88 



RULES OF CIVIL PROCEDURE 



Rule 14 



plaintiff and the third-party defendant thereupon shall assert his defenses as 
provided in Rule 12 and his counter-claims and cross-claims as provided in 
Rule 13. Any party may move to strike the third-party claim, or for its 
severance or separate trial. A third-party defendant may proceed under this 
rule against any person not a party to the action who is or may be liable to him 
for all or part of the claim made in the action against the third-party 
defendant. 

(b) When plaintiff may bring in third party. Wh^n a counter-claim is 
asserted against a plaintiff, he may cause a third party to be brought in under 
circumstances which under this rule would entitle a defendant to do so. 

(c) Admiralty and maritime claims [Omitted]. (Former Rule 14 deleted 
effective May 1, 1982; new Rule 14 adopted effective July 1, 1986.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective July 1, 1986, a new Rule 14 
was adopted. 486-490 So. 2d XVII (West 
Miss. Gas. 1986). 



Effective May 1, 1982, Rule 14 was 
abrogated. 410-416 So. 2d XXI (West Miss. 
Gas. 1982). 



COMMENT 



Third-party practice, or impleader, al- 
lows a defendant to bring into the action a 
person, not previously a party, who is or 
may be liable to the defendant for all or 
part of the plaintiff's claim against the 
defendant. The defendant thus becomes a 
third-party plaintiff with respect to his 
claim against the new party, who becomes 
the third-party defendant. The purpose of 
the practice is to avoid the problem of 
circuitous or duplicative actions, which 
occur when a defendant, held liable in the 
first action, is required to bring a second 
action against another party he alleges is 
derivatively or secondarily liable to him 
for all or part of the judgment. By consol- 
idating the main claim and the derivative 
or secondary claim in a single action, the 
court may avoid inconsistent results, du- 
plication of effort, and unnecessary delay. 

The rule requires a party seeking to 
implead a third party to obtain authoriza- 
tion from the court in all cases. (It thus 
differs from the federal version of Rule 14, 
which permits impleader without leave if 
the third-party complaint is filed within 
10 days after service of the defendant's 
answer to the original claim.) 

The rule also provides that "any party 
may move to strike the third-party claim" 
after it has been asserted. On motions 



either to authorize or to strike a third- 
party claim, the court must, of course, 
disallow any claim that does not meet the 
express requirements of the rule. 

The rule also provides, however, that 
impleader should be permitted only for 
"good cause." This term makes clear what 
is implicit in the federal rule, that the 
court has discretion to disallow a claim 
even if it meets the technical require- 
ments of the rule. As the cases interpret- 
ing the federal rule state, the court should 
exercise its discretion in light of the poli- 
cies underlying the rule. Weyerhauser Co. 
V. Wells, 593 So. 2d 1010 (Miss. 1992) 
quotes the foregoing portion of this para- 
graph with approval and states further: 

"It is apparent that the rule does not 
grant a defendant the right to have a third 
party claim heard by the court in the same 
action. The Mississippi trial courts have 
greater discretion on Rule 14 than the 
federal courts have. ..." 

Thus, a valid third-party claim that will 
avoid circuitous or duplicative actions 
should ordinarily be permitted, unless it 
would unduly delay the original action. If 
the court determines that the third-party 
claim would unduly complicate the origi- 
nal action, it should not disallow im- 
pleader; instead, it should permit the 



89 



Rule 14 



MISSISSIPPI COURT RULES 



claim and order a separate trial as autho- 
rized by the rule and by Rule 42(b). 

It is essential that the third-party claim 
be for some form of derivative or second- 
ary liability of the third-party defendant 
to the third-party plaintiff. Third-party 
practice is not a general device for bring- 
ing in additional parties to the action. It is 
not available, for example, to bring in a 
party solely on the ground that he is or 
may be liable to the original plaintiff. 
McPherson v. Hoffman, 275 F.2d 466 (6th 
Cir.1960); Campbell Construction Engi- 
neers, Inc. V. Water Works & Sewer Board, 
290 So.2d 194, 202, 52 Ala.App. 129 
(1974). Thus, an allegation that the third 
party is a joint tortfeasor or is the one 
really liable to the original plaintiff is 
insufficient to state a third-party claim. 

Impleader is likewise not available for 
the assertion of an independent action by 
the defendant against a third party, even 
if the claim arose out of the same trans- 
action or occurrence as the main claim. 
See, e.g., Nagunst v. Western Union Tel. 
Co., 76 F.R.D. 631, 635 (D.Kan.l977). 
Once a third-party claim is properly as- 
serted, however, the third-party plaintiff 
may assert whatever additional claims he 
has against the third-party defendant un- 
der Rule 18 (a). See, e.g., Schwab v. Erie 
Lackawanna R.R., 438 F.2d 62, 71 (3rd 
Cir.1971). 

The requirement that the third-party 
claim be for derivative or secondary liabil- 
ity may be met by, for example, an allega- 
tion of a right of indemnity (contractual or 
otherwise), contribution, subrogation, or 
warranty. The rule does not, however, 
create any such rights. It merely provides 
a procedure for expedited consideration of 
these rights where they are available un- 
der the substantive law. Thus, since Mis- 
sissippi does not recognize a right of con- 
tribution for joint tortfeasors. Rule 14 will 
not, in general, permit impleader of a joint 
tortfeasor. Mississippi does, however, per- 
mit contribution among judgment joint 
tortfeasors, and also recognizes a right of 
indemnity in favor of a passive tortfeasor 
against an active one. See Bush v. City of 
Laurel, 215 So.2d 256, 259, 60 (Miss. 
1968). Impleader would be available to 
accelerate the determination of claims by 
one tortfeasor against another based upon 



either of these theories of derivative lia- 
bility, where their substantive require- 
ments are satisfied. Similarly, a defendant 
may implead his liability insurer if the 
insurer is disclaiming liability on the pol- 
icy. An insurer against loss, sued by its 
policyholder, may implead the person who 
allegedly caused the loss, where a right of 
subrogation would arise from the insur- 
er's payment of the plaintiff's claim. 

Because the rule expressly allows third- 
party claims against one who "may be 
liable," it is not an objection to impleader 
that the third party's liability is contin- 
gent on the original plaintiff's recovery 
against the third-party plaintiff. Jeub v. 
BIG Foods, Inc., 2 F.R.D. 238 
(D.Minn. 1942). 

The rule makes clear that a third-party 
claim may not be asserted against a per- 
son who is already a party. This limitation 
presents no difficulty if the defending 
party wishes to assert a claim for deriva- 
tive liability against a co-party, because 
Rule 13(g) expressly allows cross-claims 
asserting that the co-party "may be" liable 
to the claimant. If, however, the party 
against whom the defendant wishes to 
assert his claim for derivative liability is a 
co-plaintiff of the party asserting the main 
claim, then the defendant does face a 
difficulty: the terms of Rule 13(a) and (b) 
state that a counter-claim must be ma- 
ture. In a proper case, however, the court 
may order the severance of the co-plaintiff 
to allow the claim to be asserted, then 
consolidate the actions under Rule 42. See 
6 Wright & Miller, Federal Practice and 
Procedure, Civil § 1446 (1990). 

Although the rule does not state it ex- 
pressly, a motion for leave to implead 
must be on notice to all the parties to the 
action, but not to the proposed third-party 
defendant. Moreover, under Rule 5 a copy 
of the third-party complaint, as well as 
the responsive pleadings of the third- 
party defendant, must be served on all the 
parties. 

The third-party defendant may assert 
his defenses to the third-party claim by 
motion or answer as provided in Rule 12 
and may assert defenses to the original 
plaintiff's claim against the third-party 
defendant. This last provision is neces- 
sary, since the defendant's assertion of a 



90 



RULES OF CIVIL PROCEDURE 



Rule 15 



third-party claim may reduce his incen- 
tives to defend the original action vigor- 
ously. 

The third-party defendant is subject to 
the compulsory counterclaim require- 
ments of Rule 13(a) with respect to claims 
against the third-party plaintiff. He may 
also assert a claim he has against the 
original plaintiff that arises out of the 
same transaction or occurrence on the 
main claim, and the original plaintiff has 
a similar right vis-a-vis the third-party 
defendant. 

The last sentence of the rule allows the 
third-party defendant to assert a fourth- 
party claim, again subject to the provi- 
sions and limitations already discussed. 

Rule 14(b) allows a plaintiff against 
whom a counterclaim has been asserted to 



implead a third-party defendant. The 
rule's requirement that the claim asserted 
against plaintiff be a counterclaim sug- 
gests that it must be asserted by an op- 
posing party. In spite of this, the plaintiff 
should be permitted to implead when the 
third-party defendant, who is not strictly 
an opposing party, has asserted a claim 
against him. See 6 Wright & Miller, Fed- 
eral Practice and Procedure, Civil § 1464 
(1990). 

History: A version of Rule 14 was in- 
cluded in the original Rules of Civil Pro- 
cedure adopted by the Supreme Court in 
1981. 

[Amended April 18, 1995; amended ef- 
fective January 27, 2005.] 



JUDICIAL DECISIONS 



Application. 
Implied consent. 

Application. 

Federal district court dismissed, on 
grounds of res judicata, the claims of a 
foreign corporation, even though the prior 
dismissal of its claims by a State court had 
been erroneous where the corporation had 
not been authorized to do business at that 
time under Miss. Code Ann. § 79-4- 
15.02(a), but the State court should have 
stayed the proceedings under Miss. Code 
Ann. § 79-4-15.02(c). Cuba Timber Co., 
Plaintiff v. Boswell, 339 F. Supp. 2d 773 
(S.D. Miss. 2004). 

Although the defendant may implead a 
liability insurer if the insurer is disclaim- 
ing liability, the defendant may not im- 
plead the insurer if the court determines 
that the insurer, pursuant to the policy 
terms, is not liable. Sennett v. United 
States Fid. & Guar. Co., 757 So. 2d 206 
(Miss. 2000). 

The trial court did not abuse its discre- 
tion when it refused to allow the defen- 



dant commission to file a third-party com- 
plaint on the basis that the commission 
had taken no steps whatsoever to expedi- 
tiously resolve the action, even though it 
noted in its argument that time was of the 
essence in completing the project at issue. 
Mississippi Transp. Comm'n v. SCI, Inc., 
717 So. 2d 332 (Miss. 1998). 

Implied consent. 

Trial court erred in concluding that the 
landowners' complaint did not contain a 
description of the lands claimed to have 
been adversely possessed and that their 
claim failed because the trial court could 
have ordered a survey to describe bound- 
aries of the tracts of land by metes and 
bounds; even if the landowners had not 
alleged adverse possession at all, the re- 
ceipt of the kind of evidence offered and 
accepted without objection on the question 
of possession would constitute a trial by 
consent, and no amendment would be 
needed. Miss. R. Civ. P 15(b). Benefield v. 
Swords, 857 So. 2d 782 (Miss. Ct. App. 
2003). 



Rule 15. Amended and supplemental pleadings. 

(a) Amendments. A party may amend a pleading as a matter of course at any 
time before a responsive pleading is served, or, if a pleading is one to which no 
responsive pleading is permitted and the action has not been placed upon the 
trial calendar, the party may so amend it at any time v^ithin thirty days after 
it is served. On sustaining a motion to dismiss for failure to state a claim upon 



91 



Rule 15 MISSISSIPPI COURT RULES 

which rehef can be granted, pursuant to Rule 12(b)(6), or for judgment on the 
pleadings, pursuant to Rule 12(c), leave to amend shall be granted when 
justice so requires upon conditions and within time as determined by the court, 
provided matters outside the pleadings are not presented at the hearing on the 
motion. Otherwise a party may amend a pleading only by leave of court or upon 
written consent of the adverse party; leave shall be freely given when justice so 
requires. A party shall plead in response to an amended pleading within the 
time remaining for response to the original pleading or within ten days after 
service of the amended pleading, whichever period may be longer, unless the 
court otherwise orders. 

(b) Amendment to conform to the evidence. When issues not raised by the 
pleadings are tried by expressed or implied consent of the parties, they shall be 
treated in all respects as if they had been raised in the pleadings. Such 
amendment of the pleadings as may be necessary to cause them to conform to 
the evidence and to raise these issues may be made upon motion of any party 
at any time, even after judgment; but failure so to amend does not affect the 
result of the trial of these issues. If evidence is objected to at the trial on the 
ground that it is not within the issues made by the pleadings, the court may 
allow the pleadings to be amended and shall do so freely when the presentation 
of the merits of the action will be subserved thereby and the objecting party 
fails to satisfy the court that the admission of such evidence would prejudice 
the maintaining of the action or defense upon the merits. The court may grant 
a continuance to enable the objecting party to meet such evidence. The court is 
to be liberal in granting permission to amend when justice so requires. 

(c) Relation hack of amendments. Whenever the claim or defense asserted in 
the amended pleading arose out of the conduct, transaction, or occurrence set 
forth or attempted to be set forth in the original pleading, the amendment 
relates back to the date of the original pleading. An amendment changing the 
party against whom a claim is asserted relates back if the foregoing provision 
is satisfied and, within the period provided by Rule 4(h) for service of the 
summons and complaint, the party to be brought in by amendment: 

(1) has received such notice of the institution of the action that the party 
will not be prejudiced in maintaining the party's defense on the merits, and 

(2) knew or should have known that, but for a mistake concerning the 
identity of the proper party, the action would have been brought against the 
party. An amendment pursuant to Rule 9(h) is not an amendment changing the 
party against whom a claim is asserted and such amendment relates back to 
the date of the original pleading. 

(d) Supplemental pleadings. Upon motion of a party the court may, upon 
reasonable notice and upon such terms as are just, permit the party to serve a 
supplemental pleading setting forth transactions, occurrences, or events which 
have happened since the date of the pleading sought to be supplemented. 
Permission may be granted even though the original pleading is defective in its 
statement of a claim for relief or defense. If the court deems it advisable that 
the adverse party plead to the supplemental pleading, it shall so order, 
specifying the time therefor. (Amended effective July 1, 1998; amended 

92 



RULES OF CIVIL PROCEDURE 



Rule 15 



effective April 17, 2003 to allow amendments on dismissal under Rule 12(b)(6) 
or judgment on the pleadings under Rule 12(c) where the court determines that 
justice so requires.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective July 1, 1998, Rule 15(c) was 
amended to state that the relation back 



period includes the time permitted for 
service of process under Rule 4(h). 



COMMENT 



"It is an invariable principle of practice 
that the admissible proof in any case must 
come within the allegations of the plead- 
ings and that it avails nothing to prove 
what is not charged. But courts are orga- 
nized for the purpose of hearing and de- 
termining causes on their actual merits; 
and, although it is true that good faith and 
a reasonable diligence are expected of 
parties in equity and of their solicitors, 
and that every party when he comes into 
court will in the first instance unfold his 
whole case or defense in accordance with 
the rules that govern the pleadings and 
proceedings therein, nevertheless it would 
be a hopelessly visionary and impractical 
expectation that every party in every case 
could always successfully communicate at 
once to his solicitor all the material facts 
with complete accuracy, or that any solic- 
itor, although having all the facts, may 
reach such a height of professional per- 
fectibility as to stand above the possibility 
of error or omission in pleading them — as 
a consequence of which there would some- 
times be a failure of full justice on the 
actual merits unless amendment and cor- 
rection in the pleadings, and in other 
procedural steps, were seasonably and ju- 
diciously allowed." V. Griffith, Mississippi 
Chancery Practice, § 388 (2d ed. 1950). 

The preceding statements state well the 
theory underljdng Rule 15 and demon- 
strate that amended pleadings have been 
liberally permitted throughout Missis- 
sippi legal history. See Miss. Code Ann. 
§§ 11-5-45, 11-5-57, 11-5-59, 11-5-61, 11- 
5-63, 11-7-55, 11-7-59(3), 11-7-115, and 
11-17-117 (1972); See also. Grocery Co. v. 
Bennett, 101 Miss. 573, 58 So. 482 (1912) 
(courts are organized for the purpose of 
tr3dng cases on their merits and only in 
exceptional cases should trial courts re- 



fuse to permit amendments to pleadings 
or proceedings); Field v. Middlesex Bkg. 
Co., 77 Miss. 180, 26 So. 365 (1899) (the 
presentation of a case on its merits should 
not be defeated by reason alone of any 
formal rules of pleading and practice, if 
within the legitimate powers of a court of 
conscience to avoid it). 

M.R.C.R 15(a) now varies from Federal 
Rule 15(a) in one important instance. The 
federal rule permits a party to amend his 
pleading only once as a matter of course 
before a responsive pleading is served; the 
Mississippi rule places no limit on the 
number of amendments. 

Prior to the 2003 amendment of Rule 
15(a), a party could, as a matter of right, 
amend within thirty days after losing on 
Rule 12(b)(6) and 12(c) motions on which 
matters outside the pleadings were not 
presented. In Poindexter v. Southern 
United Fire Ins. Co., 838 So. 2d 964 
(2003), the Supreme Court recognized 
that the rule mandated an opportunity to 
amend upon dismissal under Rule 12(b) 
even though circumstances might be such 
as would make an amendment futile. Rec- 
ognizing that the federal rule gives no 
such absolute right to amend, it was sug- 
gested there that "the better course is to 
temper M.R.C.R 15(a)'s mandate with the 
paramount concerns of logic, futility of 
amendment, and judicial economy." Poin- 
dexter, 838 So. 2d at 972, Waller, J., con- 
curring. Now, M.R.C.R 15(a) expressly 
provides that in the event a Rule 12(b)(6) 
or 12(c) motion is granted, leave to amend 
may be granted by the trial court where 
justice so requires. 

Under M.R.C.R 15(b), when evidence is 
introduced or an issue is raised with the 
express or implied consent of the other 
party, the pleadings shall be treated in all 



93 



Rule 15 



MISSISSIPPI COURT RULES 



respects as if they had been amended to 
conform to such evidence. If the opposing 
party objects but fails to persuade the 
court that such party will be prejudiced in 
maintaining the party's claim or defense, 
the court must then grant leave to amend 
the pleadings to allow the evidence on the 
issue. If the objecting party can show 
prejudice, the court may grant a contin- 
uance to meet the evidence, but should 
again allow amendment of the pleadings. 
6 Wright & Miller, supra, Civil § 1495. 

Under Rule 15(c) the first test for 
whether an amendment relates back, is 
merely whether the amended claim or 
defense arose from the same "conduct, 
transaction, or occurrence" as the original. 
The remaining tests are whether the new 
party to be added by the amendment (if 
any) is served before expiration of the 
period provided by Rule 4(h) for service of 
a summons and complaint. An intended 
defendant who is notified of an action 
within the period allowed by Rule 4(h) for 
service of a summons and complaint may 
not defeat the action on account of a defect 
in the pleading with respect to the defen- 
dant's name, provided that the require- 
ments of clauses (1) and (2) have been 
met. If the notice requirement is met 
within the Rule 4(h) period, a complaint 



may be amended at any time to correct a 
formal defect such as a misnomer or mis- 
identification. In allowing a name-correct- 
ing amendment within the time allowed 
by Rule 4(h), this rule allows not only the 
120 days specified in that rule, but also 
any additional time resulting from any 
extension ordered by the court pursuant 
to that rule, as may be granted, for exam- 
ple, if the defendant is a fugitive from 
service of the summons. 

Amendments pursuant to Rule 9(h) (fic- 
titious parties) are not considered as 
changing parties and do relate back. 

Rule 15(d) permits supplemental plead- 
ings when such are reasonably necessary 
to show transactions, occurrences, or 
events which have transpired since the 
date of the pleading sought to be supple- 
mented. This conforms, generally, to prior 
Mississippi practice. See Wright v. Frank, 
61 Miss. 32 (1883). 

While Rule 15(d) does not expressly 
incorporate the relation back doctrine of 
Rule 15(c), it appears sensible that sup- 
plemental pleadings should be subject to 
the basic relation back tests of 15(c). 6 
Wright & Miller, supra, Civil § 1508. 

[Amended effective September 1, 1987; 
amended August 21, 1996; amended July 
1, 1998; amended effective April 17, 2003.] 



JUDICIAL DECISIONS 



In general. 

Construction. 

Applicability. 

Ad damnum clause. 

Adding parties. 

Amendment of pleadings. 

Compelling reason. 

Conforming to evidence. 

Dismissal. 

Fraud. 

Implied consent. 

Interest of justice. 

Prejudice. 

Relation back. 

Statute of limitations. 

Sua sponte. 

Timeliness. 

In general. 

Parties manifested their consent to the 
chancellor's modification of the original 



judgment and division of the marital prop- 
erty on numerous occasions during the 
years covered in the appeal, and no sur- 
prise or prejudice was occasioned as a 
result of the judge's decision to grant the 
agreed request of the parties; although 
the parties' pleadings were for the con- 
tempt of the original judgment, the par- 
ties consented to the chancellor's author- 
ity to modify and decide issues not 
resolved by the Virginia divorce, including 
division of the marital property. Chapel v. 
Chapel, 876 So. 2d 290 (Miss. 2004). 

In a child support matter, more than 
seven years had passed since the eldest 
child had reached 21; therefore, his claim 
was barred by the statute of limitations, 
but the claim of his sister was still viable, 
and the father did not waive the defense 
by failing to raise it as an affirmative 
defense in the pleadings when no pleading 



94 



RULES OF CIVIL PROCEDURE 



Rule 15 



was required. Brown v. Brown, 822 So. 2d 
1119 (Miss. Ct. App. 2002). 

This rule places granting of motions to 
amend pleadings in the sound discretion 
of the trial court. Broadhead v. Terpening, 
611 So. 2d 949 (Miss. 1992). 

Construction. 

Failure of incorporators to include page 
three when they filed a first petition for 
incorporation was a clerical error and not 
a failure to comply with the specific re- 
quirements of Miss. Code Ann. § 21-1-13; 
incorporation pleadings were amendable 
pursuant to Miss. R. Civ. P. 15. City of 
Jackson v. Byram Incorporators, 16 So. 3d 
662 (Miss. 2009). 

Fair reading of the annexation statutes, 
Miss. R. Civ. P. 15(a), Miss. R. Civ. P 
81(a)(ll), and applicable case law leaves 
no doubt that, in most instances, annexa- 
tion pleadings are amendable pursuant to 
Miss. R. Civ. P. 15. The court here clarifies 
that in annexation proceedings, when er- 
rors appear in the legal description of the 
territory proposed to be annexed and/or in 
the legal description of the entire bound- 
ary as changed after enlargement/annex- 
ation, such errors may be amended pursu- 
ant to the Mississippi Rules of Civil 
Procedure and case law. Lamar County v. 
City of Hattiesburg (In re Extension of the 
Boundaries of Hattiesburg ), 840 So. 2d 69 
(Miss. 2003). 

Subdivision (b) of this rule is nothing 
more than a rule of waiver: where a party 
offers no timely objection to his opponent's 
proof on an issue not pleaded, issue is 
treated as having been tried by implied 
consent. Queen v. Queen, 551 So. 2d 197 
(Miss. 1989). 

M.R.C.P. Rule 54(c) does not preclude a 
Rule 15(b) amendment after judgment 
has been entered; phrase "amended plead- 
ings" in Rule 54(c) refers to and contem- 
plates pleadings amended in accordance 
with procedures, including timeliness, au- 
thorized in Rule 15(b). Queen v. Queen, 
551 So. 2d 197 (Miss. 1989). 

Nothing in statutes governing election 
contests conflicted with rules of civil pro- 
cedure respecting amendments, and trial 
court did not err when it allowed petition 
for judicial review to be amended. Pearson 
V. Parsons, 541 So. 2d 447 (Miss. 1989). 



Defendants' motion to amend their an- 
swer would have been granted if it had 
been considered by lower court; justice 
required that it be added, and there would 
be no prejudice. Defendants were there- 
fore not procedurally barred from raising 
issue first presented in their amended 
answer. Haygood v. First Nat'l Bank, 517 
So. 2d 553 (Miss. 1987). 

Applicability. 

Trial court did not abuse its discretion 
in denying the buyers leave to amend to 
assert a cause of action for the alleged 
violation of Miss. Code Ann. § 73-35- 
21(l)(a) where any amendment would be 
futile based on the fact that the original 
owners and buyers never consummated 
their real-estate transaction by closing on 
the home. Fletcher v. Lyles, 999 So. 2d 
1271 (Miss. 2009). 

Grant of summary judgment in favor of 
employee's employer was proper where 
denial of her leave to amend was justified, 
since she had nine months in which to 
amend her complaint, yet she waited to do 
so until two months before the trial where 
the claim had been ongoing since 1995. 
Harris v. Miss. Valley State Univ., 873 So. 
2d 970 (Miss. 2004). 

Miss. R. Civ. P. 15(d) deals with the 
supplementation of additional, unforesee- 
able or latent injuries and not additional 
legal theories, and even if the customer's 
amendment actually was a supplement, 
the standard for allowance was met be- 
cause there was reasonable notice to the 
enterprise, and there were just terms; the 
customer's motion was made six months 
before trial, and the enterprise had ample 
time to prepare for the additional legal 
theories. CEF Enters, v. Betts, 838 So. 2d 
999 (Miss. Ct. App. 2003). 

While leave to amend is to be liberally 
granted, where plaintiff twice failed to 
amend its complaint after two agreed 
scheduling orders, denial of a subsequent 
leave to amend was proper. Hartford Cas. 
Ins. Co. V. Halliburton Co., 826 So. 2d 
1206 (Miss. 2001). 

The trial court's denial of a motion to 
amend a complaint two days before trial 
did not abuse discretion. Marchbanks v. 
Borum, 806 So. 2d 278 (Miss. Ct. App. 
2001). 



95 



Rule 15 



MISSISSIPPI COURT RULES 



Leave to amend pursuant to subsection 
(a) does not apply to a case dismissed for 
lack of jurisdiction. Esco v. Scott, 735 So. 
2d 1002 (Miss. 1999). 

Ad damnum clause. 

County court has the authority to grant 
an amendment to the ad damnum clause 
even though by doing so it will divest itself 
of jurisdiction and require the matter to 
be transferred to either the chancery or 
circuit court. Wal-Mart Super Ctr. v. Long, 
852 So. 2d 568 (Miss. 2003). 

Plaintiff should have been permitted to 
amend ad damnum clause of his com- 
plaint to increase amount of his demand, 
both at conclusion of his case on first trial 
and before beginning of second trial. Brad- 
ley V. Findley, 502 So. 2d 1181 (Miss. 
1986). 

Adding parties. 

Addition of defendants' names in plain- 
tiff's amended complaint without the 
court's leave was improper, even though 
plaintiff had obtained written consent 
from the original defendants, because the 
new names were not substituted for ficti- 
tious parties, but rather were those of new 
defendants whose addition required court 
approval under Miss. R. Civ. P. 21. Veal v. 
J. P. Morgan Trust Co., N.A., 955 So. 2d 
843 (Miss. 2007). 

Patient's amended complaint, adding a 
doctor and clinic as defendants, could not 
relate back to the original complaint; be- 
cause only the motion to amend the com- 
plaint pursuant to Miss. R. Civ. P. 15(a) 
was considered filed prior to expiration of 
the statute of limitations, the putative 
amended complaint itself was held to be a 
nullity and dismissed since there were no 
timely proceedings to allow the amend- 
ment, nor was consent of the adverse 
party given. Wilner v. White, 929 So. 2d 
315 (Miss. 2006). 

Although Miss. R. Civ. P. 9(h) pleadings 
are not considered amendments changing 
a party against whom a claim was as- 
serted and are allowed under Miss. R. Civ. 
P. 15(c) to relate back to the date of the 
original pleading, the rule did not apply to 
a patient's malpractice case because, in 
order for Rule 9(h)to apply, there had to be 
a substitution of a true party name for a 
fictitious one; the patient did not substi- 



tute the doctor s name for a "John Doe," 
but simply added his name. Wilner v. 
White, 929 So. 2d 315 (Miss. 2006). 

Patient's amended complaint, w^hich 
atempted to add a doctor and a clinic as 
defendants, failed to meet the test in Miss. 
R. Civ. P. 15(c)(2) because there was no 
mistake as to the parties' identities; the 
doctor's name actually appeared in the 
body of the original complaint itself, and 
the patient was well aware of the possibil- 
ity of a claim she might have against him. 
Wilner v. White. 929 So. 2d 315 (Miss. 
2006). 

The plaintiff should have been allowed 
to amend her complaint so as to add new^ 
defendants under the "freely given where 
justice so requires" standard as there was 
no undue prejudice given that the addi- 
tional defendants gave deposition testi- 
mony in connection with the action prior 
to the filing of the amended complaint and 
thereby were aware of the action. Wilner 
V. White, 788 So. 2d 822 (Miss. Ct. App. 
2001). 

In an action arising from a motor vehi- 
cle accident, the court improperly denied 
leave to the plaintiff to amend her com- 
plaint where (1) the accident occurred on 
February 25, 1993, (2) she filed suit 
against the defendant on February 24, 
1994, and (3) she asserted that her attor- 
ney only learned that the defendant's mi- 
nor son was driving the car on April 8, 
1997 and filed a motion to amend two days 
later. Estes v. Starnes, 732 So. 2d 251 
(Miss. 1999). 

Trial judge did not err in denying plain- 
tiff's motion to amend pleadings to add 
defendant's parent corporation; defendant 
was a corporate subsidiary separate and 
distinct from its parent, and parent corpo- 
ration was not to be held responsible for 
any liability of the subsidiary. MBF Corp. 
V. Century Bus. Communications, Inc., 
663 So. 2d 595 (Miss. 1995). 

Chancellor erred in denying plaintiffs' 
motion for leave to amend complaint, 
where party sought to be added alleged 
causes of action which arose out of a series 
of transactions including those which cre- 
ated issues between existing parties. Mc- 
Donald V. Holmes, 595 So. 2d 434 (Miss. 
1992). 



96 



RULES OF CIVIL PROCEDURE 



Rule 15 



Amendment of pleadings. 

Grant of summary judgment in favor of 
the appellee neighbors in their boundary- 
dispute action was proper because the 
appellant neighbor had waived the de- 
fense of adverse possession, Miss. R. Civ. 
P. 15(a). Appellant offered no reason for 
the six-month delay between the filing of 
her answer and her motion to amend the 
answer to raise the affirmative defense of 
adverse possession; further, the affirma- 
tive defense of adverse possession would 
have existed prior to the filing of the 
lawsuit, so it was not a fact that would 
have been found only through discovery. 
Chariot v Henry, 45 So. 3d 1237 (Miss. Ct. 
App. 2010). 

Dismissal of two doctors in a medical- 
malpractice action brought by the patient 
and her spouse was inappropriate pursu- 
ant to Miss. Code Ann. § 15-1-36(15) be- 
cause the patient's rejoinder of the doctors 
as defendants via an amended complaint 
after statutory notice was provided cured 
the initial failure to give notice. Hans v. 
Mem'l Hosp., 40 So. 3d 1270 (Miss. Ct. 
App. 2010). 

Trial court did not abuse its discretion 
in allowing a former employer to file an 
untimely-amended answer because the 
employees could show no prejudice from 
the trial court's decision since the em- 
ployer pleaded the statute of limitations 
in its original answer. Jones v. Fluor Dan- 
iel Servs. Corp., 32 So. 3d 417 (Miss. 
2010). 

Trial court abused its discretion in 
denying the buyers' motion to amend to 
include the additional claims of negligent 
inducement and negligent misrepresenta- 
tion in determining that the buyers could 
not have proven by a preponderance of the 
evidence a lack of care on the part of the 
sellers; the sellers' alleged knowledge of 
the two inspection reports did not of ne- 
cessity preclude a claim of negligence. 
Fletcher v Lyles, 999 So. 2d 1271 (Miss. 
2009). 

In a negligence case, an amended com- 
plaint was timely filed, and seeking leave 
of court for the amendment was not re- 
quired because no responsive pleading 
had been filed yet. Courtney v. 
McCluggage, 991 So. 2d 642 (Miss. Ct. 
App. 2008). 



Amendment substituting a plaintiff re- 
lates back to the date of the original 
complaint under Miss. R. Civ. P. 15(c) if 
the new plaintiff is the real party in inter- 
est. MS Comp Choice, SIF v Clark, Scott 
& Streetman, 981 So. 2d 955 (Miss. 2008). 

Trial court erred in granting a law firm's 
motion for summary judgment in a legal 
malpractice suit because whether an in- 
surance company adequately alleged in its 
amended complaint that it was the as- 
signee of the insurance company's third 
party administrator's claims against the 
firm, and thus the real party in interest, 
was a genuine issue. MS Comp Choice, 
SIF V Clark, Scott & Streetman, 981 So. 
2d 955 (Miss. 2008). 

Miss. R. Civ P. 15(a) allows a plaintiff to 
amend his complaint without having first 
served the complaint on a defendant. MS 
Comp Choice, SIF v Clark, Scott & 
Streetman, 981 So. 2d 955 (Miss. 2008). 

While plaintiffs erred under Miss. Code 
Ann. §ll-46-l(i) in naming a sheriff's de- 
partment as a defendant in a personal 
injury suit, the trial court erred in deny- 
ing plaintiffs' motion for leave to amend 
the complaint pursuant to Miss. R. Civ. P. 
15(c) to add a county as a defendant where 
plaintiffs' notice of claim letter put the 
proper county official on notice that, ex- 
cept for the mistake of naming the wrong 
party, the action would have been brought 
against the county. Mieger v. Pearl River 
County, 986 So. 2d 1025 (Miss. Ct. App. 
2008), writ of certiorari denied by 987 So. 
2d 451, 2008 Miss. LEXIS 371 (Miss. 
2008). 

Where an estate mistakenly named a 
nursing home and personnel, and the es- 
tate failed to properly substitute any de- 
fendant for a fictitious party under Miss. 
R. Civ. P. 9(h), the amended complaint 
related back as to four of the defendants 
because they were the same owners and 
managers as the amended nursing home 
and had notice under Miss. R. Civ. P. 15(c), 
but the amended complaint did not relate 
back as to two defendants that did not 
have notice of the original complaint; 
therefore, those two defendant's were not 
timely served under Miss. R. Civ. P. 4(h). 
Bedford Health Props., LLC v. Estate of 
Wilhams, 946 So. 2d 335 (Miss. 2006). 

In an action alleging waste, a trial court 
should have allowed an amendment to 



97 



Rule 15 



MISSISSIPPI COURT RULES 



join two owners of property that gave 
permission to cut timber since they might 
have been indispensable parties under 
Miss. R. Civ. P. 19. Tolbert v. Southgate 
Timber Co., 943 So. 2d 90 (Miss. Ct. App. 
2006). 

After an original complaint has been 
filed, an amended complaint, except as 
otherwise provided by rule, may be filed 
only upon seeking and receiving leave of 
the court to do so, as set forth in Miss. R. 
Civ. P. 15; therefore, a putative amended 
complaint could not have been anything 
more than an attachment to the motion to 
amend until the court had ruled on that 
motion. Wilner v. White, 929 So. 2d 315 
(Miss. 2006). 

Amount of award to a corporation in a 
contract dispute was tried by consent, 
even though it was not in the corporation's 
complaint in its suit against a county. The 
trial by consent acted to amend the com- 
plaint. Southland Enters., Inc. v. Newton 
County, 940 So. 2d 937 (Miss. Ct. App. 
2006), writ of certiorari denied by 939 So. 
2d 805, 2006 Miss. LEXIS 739 (Miss. 
2006). 

Plaintiff is required to make a "reason- 
ably diligent inquiry" into the identity of 
an unknown defendant within the limita- 
tions period in order to substitute the 
defendant for a fictitious party under 
Miss. R. Civ. P 9(h) and Miss. R. Civ. P. 
15(c)(2). Santangelo v. Green, 920 So. 2d 
521 (Miss. Ct. App. 2006). 

Court did not err in den3dng defendant's 
motion to supplement his petition for 
postconviction relief because nothing he 
sought to add to his petition occurred 
since the date of pleading; while the affi- 
davits sought to be added to the petition 
were executed since the date of the origi- 
nal petition, the allegations contained 
therein all related to events that occurred 
prior to the date of the original petition. 
Hence, defendant's reliance upon Miss. R. 
Civ. P. 15(d) was misplaced. Sanchez v. 
State, 913 So. 2d 1024 (Miss. Ct. App. 
2005), writ of certiorari dismissed by 920 
So. 2d 1008, 2005 Miss. LEXIS 605 (Miss. 
2005). 

Miss. Code Ann. § 23-15-927 is silent 
regarding the amendment of pleadings. 
Therefore, Miss. R. Civ. P. 15(a) controls 
and amendments are allowed at any time 



before a responsive pleading is served; in 
the case at bar, no responsive pleading 
from the County Democratic Executive 
Committee was on record, and even if 
there was a response by the Committee 
served upon the candidate (who opposed 
the holding of a new primary election), in 
the record. Miss. R. Civ. P. 15(a) allowed 
the amendment of pleadings after a re- 
sponsive pleading was served "by leave of 
the court." Jefferson Davis County v. Da- 
vies, 912 So. 2d 837 (Miss. 2005). 

Trial court erred in dismissing, pursu- 
ant to Miss. R. Civ. P. 12, a purchaser's 
action to recover for defects in a mobile 
home; the purchaser's act of filing an 
amended complaint within the relevant 
statute of limitations. Miss. Code Ann. 
§ 63-17-159(6), was sufficient to defeat 
defendants' motion to dismiss, as the 
amended complaint, filed pursuant to 
Miss. R. Civ. P. 15, provided defendants 
with the required notice under Miss. R. 
Civ. P 4. King v. Am. RV Ctrs., Inc., 862 
So. 2d 558 (Miss. Ct. App. 2003). 

Trial court did not err in dismissing 
defendant's motion to amend his postcon- 
viction petition for relief; since the State 
was not required to file a responsive 
pleading, defendant had 30 days, pursu- 
ant to Miss. R. Civ. P. 15(a), to file his 
motion to amend from the time he served 
his postconviction relief motion, and since 
he did not file his motion within that time, 
the trial court did not err in dismissing his 
motion to amend. Faye v. State, 859 So. 2d 
393 (Miss. Ct. App. 2003). 

While truck owner's claim to determine 
insurance coverage under Miss. R. Civ. P. 
57(b)(2) was futile because the insurance 
company did not deny coverage, and dis- 
missal as to that claim was proper, the 
trial court abused its discretion in denying 
the truck owner's motions to compel dis- 
covery, and for leave to file a first amended 
complaint, to add a claim of intentional 
infliction of emotional distress based on 
the plain language of Miss. R. Civ. P. 15(a). 
Poindexter v. S. United Fire Ins. Co., 838 
So. 2d 964 (Miss. 2003). 

Bank had reason to be on notice of the 
variance in the acreage figures before the 
trial commenced and even before the buy- 
er's counsel tried to repair the error, 
namely, upon taking the depositions of the 



98 



RULES OF CIVIL PROCEDURE 



Rule 15 



agents and the buyer's theory of the case 
and damages were for the land the bank 
had purchased while the buyer was trying 
to secure a loan with the bank; thus, any 
prejudice suffered by the bank with re- 
gard to the amendment of the buyer's 
pleadings pursuant to Miss. R. Civ. P. 
15(b) did not amount to reversible error. 
AmSouth Bank v. Gupta, 838 So. 2d 205 
(Miss. 2002). 

In a suit for negligence, trial court did 
not abuse its discretion in permitting one 
psychiatrist to amend his answer in a suit 
for negligence to include a notice and 
statute of limitation defense, or in permit- 
ting another psychiatrist to raise the 
same defenses for the first time in his 
motion for summary judgment. Bennett v. 
Madakasira, 821 So. 2d 794 (Miss. 2002). 

In a firefighter's employment dispute 
with a city, the trial court abused its 
discretion when refusing to allow the fire- 
fighter to amend the complaint following 
the city's motion to dismiss or, in the 
alternative, move for summary judgment; 
the firefighter sought to add a new theory 
of recovery arising from the same trans- 
action and series of events in response to 
the city's assertion of governmental im- 
munity. Pratt V. City of Greenville, 804 So. 
2d 972 (Miss. 2001). 

The plaintiffs were properly denied 
leave to amend the complaint on a motion 
to dismiss where the proposed amend- 
ment was futile in the light of statutory 
and case law pertaining to their claim. 
Jones V. Lovett, 755 So. 2d 1243 (Miss. Ct. 
App. 2000). 

Court did not abuse its discretion in 
allowing defendant to amend her plead- 
ings during the trial by adding counter- 
claims; defendant did not prevail on some 
of these claims and plaintiff could show no 
actual prejudice caused by the addition of 
the other claims. Merchants Acceptance, 
Inc. V. Jamison, 752 So. 2d 422 (Miss. Ct. 
App. 1999). 

Defendant in replevin action should 
have been granted leave to file amended 
response and counterclaim, where his mo- 
tion to amend was timely, did not alter the 
gist of his allegations, and neither plain- 
tiff nor trial court identified any undue 
prejudice that would be suffered by plain- 
tiff if amendment were to be granted. 



Simmons v. Thompson Mach., 631 So. 2d 
798 (Miss. 1994). 

Trial court erred in denying plaintiff 
leave to amend her complaint to include 
RICO claims arising out of the same series 
of events as her original complaint, and 
therefore court's grant of summary judg- 
ment was premature. Frank v. Dore, 635 
So. 2d 1369 (Miss. 1994). 

Trial court was correct in refusing to 
hear petition for writ of habeas corpus, 
where mother sought to amend her plead- 
ing a mere two days before trial in termi- 
nation of parental rights proceeding. Nat- 
ural Mother v. Paternal Aunt, 583 So. 2d 
614 (Miss. 1991). 

Plaintiffs alleging false arrest and false 
imprisonment were not entitled to amend 
their complaint to include claim for mali- 
cious prosecution, where they failed to 
properly move for leave to amend, defen- 
dants' motion for summary judgment had 
already been sustained, and allowing 
plaintiffs to circumvent statute of limita- 
tions by their proposed amendment would 
be unduly prejudicial to defendants. Par- 
ker V. Mississippi Game & Fish Comm'n, 
555 So. 2d 725 (Miss. 1989). 

Compelling reason. 

Policy to freely grant amendments is 
not allowed to encourage delay, laches and 
negligence; examples of when a motion to 
amend may be prejudicial include where it 
would burden the adverse party with 
more discovery, preparation, and expense, 
particularly where the adverse party 
would have little time to investigate and 
acquaint itself with the matter; lack of 
diligence is not a compelling reason to 
amend, and applications to amend the 
pleadings should be prompt. Webb v. 
Braswell, 930 So. 2d 387 (Miss. 2006). 

Defendant insurance agent's motion for 
leave to file a cross-claim against defen- 
dant insurer was properly denied because 
there was no compelling reason under 
Miss. R. Civ. P. 15(a) why the cross-claim 
had to be filed in this suit as the agent was 
not seeking to hold the insurer liable for 
any damages that the insureds may have 
recovered against the agent and and when 
the motion was heard the lawsuit had 
already been dismissed. Edwards v. Jack- 
son Nat'l Life Ins. Co., 860 So. 2d 842 
(Miss. Ct. App. 2003). 



99 



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MISSISSIPPI COURT RULES 



Conforming to evidence. 

Although the developers did not affir- 
matively plead equitable estoppel in their 
answer, the record was replete with par- 
ticular facts that reverberated with the 
tenets of equitable estoppel, Miss. R. Civ. 
P. 15(b). Accordingly, they were sufficient 
to support the chancellor's finding. David 
M. Cox, Inc. v. Pitts, 29 So. 3d 795 (Miss. 
Ct. App. 2009), writ of certiorari denied en 
banc by 29 So. 3d 774, 2010 Miss. LEXIS 
138 (Miss. 2010). 

Despite the fact that a county failed to 
set forth the affirmative defense of con- 
tributory negligence in the pleadings as 
required under Miss. R. Civ. P. 8(c), nei- 
ther a car driver nor a passenger mother 
voiced an objection at either request by 
the county to apply comparative negli- 
gence during the trial and thus, the de- 
fense could be treated as if it had been 
raised in the pleadings under Miss. R. Civ. 
P. 15(b). Callahan v. Ledbetter, 992 So. 2d 
1220 (Miss. Ct. App. 2008). 

Question of a constructive trust was 
properly before the appellate court pursu- 
ant to Miss. R. Civ. P. 15(b) because when 
the husband and wife introduced the evi- 
dence and the administratrix did not ob- 
ject, the pleadings were amended by oper- 
ation of the rules of civil procedure; even 
were the appellate court to consider the 
husband and wife "the other side," the 
husband and wife consented, since they 
were the ones who introduced evidence 
outside the pleadings. Home v. Parker (In 
re Estate of Hood), 955 So. 2d 943 (Miss. 
Ct. App. 2007). 

Because a former adoptive mother's 
husband was both a legal custodian and a 
legal parent of a child, he was entitled to 
notice of a prospective adoptive mother's 
attempts to adopt; although the father 
was not named in the first adoption de- 
cree, he was a de facto party to such due to 
a chancery court's questioning of him, the 
recognition in the final decree that he was 
married to the former adoptive mother, 
and the fact that the child was taking his 
last name. In re J.D.S., 953 So. 2d 1133 
(Miss. Ct. App. 2007). 

There was no error in allowing the Mis- 
sissippi State Bar to amend its formal 
complaint at the close of its case-in-chief 
under Miss. R. Civ. P. 15(b) to include an 



allegation that an attorney violated an- 
other rule of professional conduct based 
on evidence received at a formal hearing 
because there was no objection to testi- 
mony regarding this violation or the intro- 
duction of a client's receipts. Shah v. Miss. 
Bar, 962 So. 2d 514 (Miss. 2007). 

Trial court's grant of divorce to a wife 
was proper in a case where there was no 
surprise or prejudice occasioned as a re- 
sult of the trial court's decision to grant a 
divorce requested by both parties based on 
the husband's admission of adultery. Ward 
V. Ward, 825 So. 2d 713 (Miss. Ct. App. 
2002). 

Because the issue of adverse possession 
was tried by consent, the failure to amend 
the pleadings to make them conform to 
the evidence did not affect the result of the 
trial on these issues. Stewart v. Graber, 
754 So. 2d 1281 (Miss. Ct. App. 1999). 

The trial court did not abuse its discre- 
tion when it refused to allow the plaintiff 
to amend its complaint to conform the 
pleadings to proof and include a cause of 
action for commercial bribery on the basis 
that the plaintiff lacked due diligence in 
amending the complaint and because the 
defendants would have been adversely 
prejudiced if the motion to amend was 
granted at such a late date, on the last day 
of a four-day trial. Par Indus, v. Target 
Container Co., 708 So. 2d 44 (Miss. 1998). 

The plaintiff wife was properly permit- 
ted to amend the complaint in her divorce 
action to conform to evidence already pre- 
sented in her trial testimony where ( 1) the 
amendment occurred in the middle of her 
testimony and before the defendant hus- 
band was called as a witness, (2) the only 
contested issues in the amended plead- 
ings were increased requests in the 
amount of the lump sum and periodic 
alimony, and (3) the husband was re- 
quired to put on the same evidence to 
defend the request for alimony, regardless 
of the amount in the pleadings. Robison v. 
Robison, 722 So. 2d 601 (Miss. 1998). 

Where the defendant offered no objec- 
tion to evidence offered by the plaintiff of 
a deficiency in child support greater than 
the amount set forth in her pleadings, the 
pleadings would be deemed amended, es- 
pecially since (1) the amount sought was a 
liquidated amount which the defendant 



100 



RULES OF CIVIL PROCEDURE 



Rule 15 



could reasonably calculate based on his 
own knowledge of the decree versus the 
amount paid by him, and (2) the defen- 
dant knew that he was not currently pay- 
ing the full amount of child support due 
and that, therefore, the outstanding 
amount thereof would continue to in- 
crease until trial. Lahmann v. Hallmon, 
722 So. 2d 614 (Miss. 1998). 

Chancellor did not err in den3ring defen- 
dant's motion to amend to conform plead- 
ings to proof presented at trial, where 
defendant's proof, even if admitted under 
an amended pleading, would have been 
inadequate to support a claim. Bowser v. 
Tootle, 556 So. 2d 1373 (Miss. 1990). 

Plaintiff's motion, at close of defen- 
dant's case, to amend medical malpractice 
complaint to conform to evidence pre- 
sented in case was correctly denied, where 
new theory of recovery was not tried by 
implied consent, and had motion been 
granted, it would have resulted in undue 
prejudice to defendant. McCarty v. 
Kellum, 667 So. 2d 1277 (Miss. 1995). 

Dismissal. 

Trial court's dismissal of complaint for 
failure to state a claim for which relief can 
be granted afforded plaintiffs an auto- 
matic right to amend within thirty days, 
but their failure to exercise this right 
rendered their assignment of error merit- 
less. Sligh V. First Nat'l Bank, 704 So. 2d 
1020 (Miss. 1997). 

Fraud. 

Petitioner's motion for leave to amend 
should have been allowed, where motion 
alleged fraud perpetrated upon court by 
administratrix of estate; if an allegation of 
fraud is sufficiently pled it should be 
heard, and thirty days leave to amend is 
to be granted when court sustains a mo- 
tion to dismiss. Smith v. Estate of King, 
501 So. 2d 1120 (Miss. 1987). 

Implied consent. 

Trial court erred in concluding that the 
landowners' complaint did not contain a 
description of the lands claimed to have 
been adversely possessed and that their 
claim failed because the trial court could 
have ordered a survey to describe bound- 
aries of the tracts of land by metes and 
bounds; even if the landowners had not 



alleged adverse possession at all, the re- 
ceipt of the kind of evidence offered and 
accepted without objection on the question 
of possession would constitute a trial by 
consent, and no amendment would be 
needed. Miss. R. Civ. P. 15(b). Benefield v. 
Swords, 857 So. 2d 782 (Miss. Ct. App. 
2003). 

Two fleeting references to the possibility 
of joint custody"^ during a trial in which 
both parents fought hard for sole custody 
— were insufficient to amend a parent's 
pleadings under a theory of implied con- 
sent to include a petition for joint custody. 
Mabus V. Mabus, 890 So. 2d 806 (Miss. — 
2003). 

Because it was reasonable that claim- 
ant did not recognize the significance of 
the evidence introduced at trial that was 
not present in the pleadings, and thus 
failed to object, he did not give implied 
consent to the trial of the unpleaded is- 
sues. Cox V. S.B. Thomas Trust, 755 So. 2d 
52 (Miss. Ct. App. 1999). 

Plaintiff was not barred from asserting 
negligence issue, where she implicitly 
amended her complaint under subdivision 
(b) of this rule by introducing negligence 
issue in her motion opposing summary 
judgment, and the rule allows issues tried 
by implied consent to be litigated. 
Presswood v. Cook, 658 So. 2d 859 (Miss. 
1995). 

Chancellor erred in amending divorce 
decree to award husband the parties' old- 
est child as a tax exemption; issue of tax 
exemptions was not raised by the plead- 
ings, and wife did not impliedly consent to 
trial of issue where chancellor's few, brief 
questions of husband concerning tax ex- 
emptions would not have alerted wife that 
a new, unpled issue was being raised and 
tried. Shipley v. Ferguson, 638 So. 2d 1295 
(Miss. 1994). 

A finding that an issue was tried by 
implied consent depends upon whether 
parties recognized that a new issue was 
being litigated at trial; where questions 
asked or evidence presented at trial are 
relevant to issues actually raised in the 
pleadings, trial by implied consent will 
not be found. Setser v. Piazza, 644 So. 2d 
1211 (Miss. 1994). 

Wife's action for separate maintenance 
was properly converted to, and tried as, a 



101 



Rule 15 



MISSISSIPPI COURT RULES 



claim for alimony, where husband put on 
evidence as to fault and alimony, failed to 
properly object, and failed to raise any due 
process considerations at trial or on ap- 
peal, and therefore issue of alimony was 
tried by parties' consent. Weiss v. Weiss, 
579 So. 2d 539 (Miss. 1991). 

Where plaintiffs originally sued on 
agency theory but added joint venture 
claim at trial, the matter was tried by 
implied consent where defendant noted 
the new theory but did not object. Car- 
michael v. Agur Realty Co., 574 So. 2d 603 
(Miss. 1990). 

Undue influence issue was tried by im- 
plied consent of parties, where plaintiff at 
trial sought to establish existence of con- 
fidential relationship and defendant's ex- 
ercise of undue influence, and no objection 
was offered on grounds that such evidence 
was beyond scope of pleadings. Norris v. 
Norris, 498 So. 2d 809 (Miss. 1986). 

Interest of justice. 

Chancellor abused her discretion by al- 
lowing a wife to put forward evidence of 
her need for temporary rehabilitative ali- 
mony, in order "to be fair to both parties 
and to do equity," where there had been no 
mention of alimony in the pre-trial state- 
ment. Singley v. Singley, — So. 2d — , 2003 
Miss. LEXIS 283 (Miss. June 12, 2003). 

Chancery court should have allowed 
taxpayers' post-judgment motion to 
amend complaint to assert claim under 42 
U.S.C. § 1983 and Equal Protection 
Clause, since case was of great public 
interest, federal judiciary had declared 
that it had no subject matter jurisdiction, 
and justice demanded that the claim be 
heard and decided on its merits and the 
only available alternative was allowing 
amendment in the present action. Burrell 
V. Mississippi State Tax Comm'n, 536 So. 
2d 848 (Miss. 1988). 

Trial court did not err in denying the 
motion to amend filed by the deceased 
patient's heir after the statute of limita- 
tions expired because the heir failed to 
meet both the identity of transaction test 
and the notice requirement, thereby ren- 
dering the relation back doctrine of Miss. 
R. Civ. P. 15(c) inapplicable and her 
amended complaint barred by the two- 
year statute of limitations provided in 
Miss. Code Ann. § 15-1-36(2) for wrongful 



death actions. The facts on which the heir 
founded her claims of negligence gave rise 
to separate and distinct actions, which 
failed to inform the doctor of litigation 
concerning a particular occurrence be- 
cause the original complaint alleged that 
the doctor negligently prescribed ACE in- 
hibitors for the patient's hypertension, 
and the amended complaint alleged he 
negligently prescribed allopurinol for the 
patient's gout. Bracey v. Sullivan, 899 So. 
2d 210 (Miss. Ct. App. 2005). 

Prejudice. 

Although the court did not find any 
evidence that appellant sought leave of 
court to amend his complaint to add a 
claim that appellee usurped a corporate 
opportunity, any error was harmless be- 
cause the record was clear that the chan- 
cellor did not award appellant any dam- 
ages based on that claim. Griffith v. 
Griffith, 997 So. 2d 218 (Miss. Ct. App. 
2008). 

Under Miss. R. Civ. P. 15, appellant 
should have been allowed to amend his 
pleadings where, when appellee appealed 
from the justice court to the circuit court, 
the circuit court granted original jurisdic- 
tion, not appellate jurisdiction, and there- 
fore had to follow the Mississippi Rules of 
Civil Procedure; appellee would not suffer 
prejudice if appellant were to amend his 
pleadings, especially since it was appellee 
who chose to appeal to the circuit court 
and invoke the original jurisdiction of the 
circuit court. Statham v. Miller, 988 So. 2d 
407 (Miss. Ct. App. 2008). 

Had the trial court granted the couple 
leave to amend, the rights of all the defen- 
dants would be prejudicially affected, in 
particular, the driver's insurer, who had 
been dismissed as a result of the settle- 
ment agreement, would have been most 
prejudicially affected, and to grant the 
couple permission to amend their com- 
plaint at such a late date would prejudice 
the restaurant; accordingly, the trial court 
did not abuse its discretion in den5dng the 
couple's motion to amend. Whitaker v. T & 
M Foods, Ltd., 7 So. 3d 946 (Miss. Ct. App. 
2007), reversed by, remanded by 2008 
Miss. LEXIS 486 (Miss. Oct. 2, 2008), 
reversed by, remanded by 7 So. 3d 893, 
2009 Miss. LEXIS 166 (Miss. 2009)supra. 



102 



RULES OF CIVIL PROCEDURE 



Rule 15 



County court did not abuse its discre- 
tion in granting a plaintiff, more than one 
year after the complaint was filed, leave to 
amend her ad damnum clause from 
$75,000 to $750,000, as the amendment 
did not prejudice defendant, which could 
have sought removal to federal court but 
chose not to. Wal-Mart Super Ctr. v. Long, 
852 So. 2d 568 (Miss. 2003). 

Where employee filed her motion to 
amend her pleadings just 14 days after 
the employer filed his answer and 9 days 
after the employer filed his motion for 
summary judgment, this filing by the em- 
ployee was well within the normal period 
for discovery and prior to the case being 
anywhere near ready for trial, and there 
was no actual prejudice to the employer, 
thus, the trial court abused its discretion 
in denying the employee's motion to 
amend her pleadings. Coleman v. Smith, 
841 So. 2d 192 (Miss. Ct. App. 2003). 

Amendment of defendant's answer and 
counterclaim should have been allowed, 
where amendment would have merely for- 
mally pled those issues of which plaintiff 
already had full knowledge. TXG Intra- 
state Pipeline Co. v. Grossnickle, 716 So. 
2d 991 (Miss. 1997). 

In practice, an amendment should be 
denied only if the amendment would 
cause actual prejudice to the opposite 
party. TXG Intrastate Pipeline Co. v. 
Grossnickle, 716 So. 2d 991 (Miss. 1997). 

Trial court did not abuse its discretion 
in granting leave to file amended com- 
plaint, where opposing party did not as- 
sert nor did record contain a hint of prej- 
udice. Rector v. Mississippi State Hwy. 
Comm'n, 623 So. 2d 975 (Miss. 1993). 

Allowing entire theory of liability to 
change at conclusion of a three-day trial 
seriously prejudiced defendant, and cir- 
cuit judge therefore erred in submitting 
new issue to jury, and was correct in 
reversing his ruling upon defendant's mo- 
tion for judgment notwithstanding the 
verdict. Hester v. Bandy, 627 So. 2d 833 
(Miss. 1993). 

Relation back. 

In a medical negligence case in which a 
mother raised her constitutional chal- 
lenges to the Mississippi Tort Claims Act 
(MTCA) for the first time on appeal, al- 
though, in her motion to amend the com- 



plaint, the mother stated that she wished 
to raise the constitutionality of the MTCA, 
there was no valid complaint to amend. 
The mother had not complied with the 
notice requirement under Miss. R. Civ. P. 
24(d), and she had not complied with the 
90-day notice period in Miss. Code Ann. 
§ 11-46-11(1). Jones v. Laurel Family 
Clinic, P.A., 37 So. 3d 665 (Miss. Ct. App. 
2010). 

Trial court's dismissal of the personal 
injury action as untimely was reversed 
and remanded for further proceedings be- 
cause it had long been recognized that the 
doctrine of misnomer allowed parties to 
correct party-name errors if doing so 
would not result in prejudice. Allowing the 
dismissal to stand would have denied the 
patient an opportunity for a trial on the 
merits because of a misnomer in the com- 
plaint, and the patient should not have 
been penalized for the misnomer, because 
no such penalty existed under the facts of 
the case, in which the correction was sim- 
ple and prejudiced no one. Scaggs v. 
GPCH-GP, Inc., 23 So. 3d 1080 (Miss. 
2009). 

Applying Miss. R. Civ. P. 15(c), the pa- 
tient's proposed amended complaint did 
arise out of the same transaction, but 
there was no evidence that the medical 
company received any notice of the insti- 
tution of the present medical negligence 
action until after the time period for ser- 
vice of process had expired. Thus, the 
patient failed to meet the requirements of 
Rule 15(c) and seeing as the company was 
not a defendant in the case, it was not 
error for the circuit court to refuse to allow 
the patient to serve the company with 
process, and Miss. R. Civ. P. 4(h) was 
inapplicable. Johnson v. Lee, 17 So. 3d 
1140 (Miss. Ct. App. 2009). 

Summary judgment was granted to an 
electric company in a property damage 
case because the statute of limitations 
was not tolled under Miss. Code Ann. 
§ 15-1-57 since, from the date of an al- 
leged incident until the expiration of the 
three-year statute of limitations, other 
parties were free to file their own claim or 
to join in the claim erroneously filed on 
behalf of a dissolved corporation. Miss. R. 
Civ. P. 15(c) did not allow for a reprieve 
from the limitations period because no 



103 



Rule 15 



MISSISSIPPI COURT RULES 



amended complaint was filed; instead, an 
entirely new action with new parties was 
initiated. Funderburg v. Pontotoc Elec. 
Power Ass'n, 6 So. 3d 439 (Miss. Ct. App. 
2009). 

Negligence case was properly dismissed 
as barred by the statute of limitations 
where the elements of Miss. R. Civ. P. 15(c) 
were not met; even though an amended 
complaint arose from the same conduct, 
transaction, or occurrence as an original 
complaint, there was no mistake concern- 
ing a driver's identity where he was iden- 
tified in an accident report and referred to 
in the allegations of the original com- 
plaint. An owner's original suit against 
the driver's grandmother was dismissed 
because the grandmother was not the 
driver's guardian. Campbell v. Davis, 8 So. 
3d 909 (Miss. Ct. App. 2009). 

Civil rights litigant's motion to amend 
his pro se complaint in tort to add a 
federal claim under 42 U.S.C.S. § 1983 
for violation of his right to free speech on 
the ground that the tort claims were 
barred by the Mississippi Tort Claims Act 
was properly denied because the federal 
claim was barred under the applicable 
residual three-year statute of limitation 
period in Miss. Code Ann. § 15-1-49 and 
because the amended claim did not relate 
back to the time of the filing of the original 
pleading, pursuant to Miss. R. Civ. P. 
15(c); the proposed amendment did not 
pass the identity of transaction test be- 
cause the tort claims asserted in the orig- 
inal complaint did not bear a relation to 
the free speech claim and the defendant 
was not on notice regarding the free 
speech claim. Giles v. Stokes, 988 So. 2d 
926 (Miss. Ct. App. 2008). 

In a products liability suit, pursuant to 
Miss. R. Civ. P 9(h) and 15(c)(2), a pa- 
tient's second amended complaint, which 
substituted a medical device manufac- 
turer for an unknown defendant, related 
back to the date of the original complaint 
naming a fictitious defendant because the 
patient made a reasonably diligent in- 
quiry into the identity of the manufac- 
turer where the suit was filed one day 
before the three-year limitations period in 
Miss. Code Ann. § 15-1-49 expired; less 
than three months elapsed between when 
the hospital that used the device on the 



patient supplied an erroneous manufac- 
turer's name and when the patient sought 
to substitute that manufacturer's name 
for the fictitious party designation; and 
the patient sought to substitute the cor- 
rect manufacturer for the first manufac- 
turer within three weeks after learning 
that the manufacturer had actually made 
the device. Scoggins v. Boston Sci. Corp., 
— F. Supp. 2d — , 2008 U.S. Dist. LEXIS 
35507 (N.D. Miss. Apr. 22, 2008). 

Landman and lessees entered stipu- 
lated evidence on the amount in dispute 
and the date that it was due, and the 
landman made no other objections to this 
stipulation; the landman did not object 
that the evidence of prejudgment interest 
was outside the pleadings, and since he 
failed to make such objection, the evidence 
of liquidated damages and the date from 
which they were allegedly due was en- 
tered prior to judgment by the expenses 
or, at the very least, implied consent of the 
parties. Gill v. Gipson, 982 So. 2d 415 
(Miss. Ct. App. 2007), writ of certiorari 
denied by 981 So. 2d 298, 2008 Miss. 
LEXIS 238 (Miss. 2008). 

Substitution of a son as the party in a 
wrongful death case was improper be- 
cause a patient's brother lacked standing 
to bring the action originally; by the time 
the son filed an amended complaint, the 
limitations period in Miss. Code Ann. 
§ 11-7-13 had expired, and the complaint 
did not relate back to a nullity, and there- 
fore dismissal was warranted. Tolliver ex 
rel. Wrongful Death Beneficiaries of 
Green v. Mladineo, 987 So. 2d 989 (Miss. 
Ct. App. 2007). 

In a wrongful death case, an amend- 
ment of a complaint under Miss. R. Civ. P. 
15(c) was properly denied because the 
causes of action did not arise out of the 
same nucleus of common facts; one dealt 
with the design and manufacturing of a 
vehicle, while the other dealt with the 
failure to inspect and repair the vehicle 
before resale, and therefore, the statute of 
limitations had run on the proposed claim 
since relation back did not apply. Russell 
V. Ford Motor Co., 960 So. 2d 495 (Miss. 
Ct. App. 2006), writ of certiorari denied by 
959 So. 2d 1051, 2007 Miss. LEXIS 387 
(Miss. 2007). 

Patient's amended complaint did not 
relate back to the original complaint as 



104 



RULES OF CIVIL PROCEDURE 



Rule 15 



the patient was not diligent by waiting 
almost two years after filing the original 
complaint to identify a clinic and a doctor 
who had been named as fictitious parties. 
Joiner v. Philhps, 953 So. 2d 1123 (Miss. 
Ct. App. 2006). 

Summary judgment was properly 
awarded to a doctor in a patient's medical 
malpractice action where the patient's 
amended complaint, in which she added 
the doctor as a defendant, was not a 
proper Miss. R. Civ. P. 9(h) substitution, 
because the amended complaint had not 
replaced a John Doe defendant with the 
doctor, and the amended complaint did 
not relate back to the date of the original 
pleading under Rules 9(h) and 15(c)(2). 
Santangelo v. Green, 920 So. 2d 521 (Miss. 
Ct. App. 2006). 

In a medical malpractice action, on re- 
mand from a first appeal denying an 
amended complaint, the trial court 
granted summary judgment for defen- 
dants based on the two-year limitations 
period. However, upon a petition for re- 
hearing, the appellate court held that 
based on the unique facts of the case, the 
amended complaint should have been 
treated as an original complaint as to the 
added parties; since the amended com- 
plaint was filed prior to the expiration of 
the statute of limitations (exactly two 
years after the alleged negligence), and a 
summons, along with the amended com- 
plaint, was served upon the added parties 
within the time period required by Miss. 
R. Civ. P. 4(h), the trial judge erred in 
granting summary judgment for defen- 
dants. Wilner v. White, 929 So. 2d 343 
(Miss. Ct. App. 2005), reversed by 929 So. 
2d 315, 2006 Miss. LEXIS 267 (Miss. 
2006). 

Amendment that changes the parties 
against whom the claim is asserted will 
relate back if within the statute of limita- 
tions period and the additional 120 days 
for service of process, the new party re- 
ceives such notice of the action as will 
prevent prejudice, and the new party 
knows or should have known that but for 
a mistake concerning the identity of the 
proper party, the action would be brought 
against the party. If the complaint uses 
fictitious names because the plaintiff is 
ignorant of the name of an opposing party 



and so alleges in his pleading, then an 
amendment to add the newly discovered 
actual party relates back to the date of the 
original pleading pursuant to Miss. R. Civ. 
P 9(h) and Miss. R. Civ. P 15(c)(2). Wilner 
V. White, 929 So. 2d 343 (Miss. Ct. App. 
2005), reversed by 929 So. 2d 315, 2006 
Miss. LEXIS 267 (Miss. 2006). 

Circuit court had priority jurisdiction 
over a chancery court regarding the spe- 
cific performance of a lease agreement 
between a partnership and a corporation 
because the partnership filed a complaint 
alleging breach of a management contract 
against the corporation in the circuit court 
before the corporation filed its action in 
the chancery court, the partnership's com- 
plaint was amended after the corporation 
filed its action in the chancery court to 
include a declaratory action that the lease 
was void as a result of the corporation's 
breach of the management agreement, 
and the complaint amendment related 
back to the date of the partnership's orig- 
inal filing under Miss. R. Civ. P. 15(c). 
Copiah Med. Assocs. v. Miss. Baptist 
Health Sys., 898 So. 2d 656 (Miss. 2005). 

Trial court did not err in denying the 
motion to amend filed by the deceased 
patient's heir after the statute of limita- 
tions expired because the heir failed to 
meet both the identity of transaction test 
and the notice requirement, thereby ren- 
dering the relation back doctrine of Miss. 
R. Civ. P. 15(c) inapplicable and her 
amended complaint barred by the statute 
of limitations. The facts on which the heir 
founded her claims of negligence gave rise 
to separate and distinct actions, which 
failed to inform the doctor of litigation 
concerning a particular occurrence be- 
cause the original complaint alleged that 
the doctor negligently prescribed ACE in- 
hibitors for the patient's hypertension, 
and the amended complaint alleged he 
negligently prescribed allopurinol for the 
patient's gout. Bracey v. Sullivan, 899 So. 
2d 210 (Miss. Ct. App. 2005). 

Notwithstanding Miss. Code Ann. § 93- 
25-9(b), the chancellor could have exer- 
cised jurisdiction over the child support 
question if the father, a resident of Cali- 
fornia, had voluntarily entered a general 
appearance, or filed a responsive pleading 
that effectively waived the issue of juris- 



105 



Rule 15 



MISSISSIPPI COURT RULES 



diction. However, while it was correct that 
the father filed a written answer, with 
leave of court, he filed an amended an- 
swer, which contested jurisdiction; same 
related back to the filing date of the orig- 
inal answer, and despite his written entry 
of appearance, and a motion for guardian 
ad litem, the facts did not suffice for a 
general appearance or for personal juris- 
diction over the father for the purpose of 
modifying child support. Scaife v. Scaife, 
880 So. 2d 1089 (Miss. Ct. App. 2004). 

Patient's motion for leave to amend had 
been filed prior to the end of the limitation 
and service of process period, however, the 
matter was not brought on for hearing 
until after the limitation and the process 
service window closed. An amendment to 
add a party at so late a date would relate 
back only if notice had been timely re- 
ceived, and "a mistake concerning the 
identity of the proper party" had existed or 
substitution of a newly identified party for 
a fictitious one was being made; even had 
the patient's complaint been amended im- 
mediately after the hearing on the motion 
to amend, it would not have related back 
since the patient was aware of the new 
defendants who were the subject of the 
proposed amendment and there was not 
reasonable diligence. Wilner v. White, — 
So. 2d — , 2004 Miss. App. LEXIS 654 
(Miss. Ct. App. July 13, 2004), opinion 
withdrawn by, substituted opinion at, re- 
manded by 929 So. 2d 343, 2005 Miss. 
App. LEXIS 1033 (Miss. Ct. App. 2005). 

By a request to amend its complaint 
against a debtor to seek foreclosure, a 
lienholder properly initiated foreclosure, 
even though the request was not granted 
until months later because, pursuant to 
Miss. R. Civ. P. 15, the granting of a 
motion to amend related back to the orig- 
inal pleadings; thus, the lienholder initi- 
ated foreclosure proceedings prior to the 
expiration of the one-year extension of a 
condominium lien pursuant to Miss. Code 
Ann. § 89-9-21. Tally Arms Condo. Ass'n 
V. Breland, 854 So. 2d 28 (Miss. Ct. App. 
2003). 

Where newly added defendants were 
not served with the original complaint or 
with the motion to amend and the pro- 
posed amended complaint within 120 days 
after the statute of limitations elapsed, as 



the amended complaint was filed after the 
statute of limitations had run against the 
new defendants and did not relate back to 
the filing of the original complaint under 
Miss. R. Civ. P. 15(a), (c), the trial court 
properly dismissed the new defendants. 
Curry v. Turner, 832 So. 2d 508 (Miss. 
2002). 

In order for an amendment to a com- 
plaint to "relate back" under subsection (c) 
of this rule, the original complaint must 
be valid. Pickens v. Donaldson, 748 So. 2d 
684 (Miss. 1999). 

Relation back privilege provided for fic- 
titious parties under subdivision (c)(2) of 
this rule requires plaintiff to actually ex- 
ercise a reasonably diligent inquiry into 
identity of the fictitious party. Doe v. Mis- 
sissippi Blood Servs., Inc., 704 So. 2d 1016 
(Miss. 1997), cert, denied, 523 U.S. 1078, 
118 S. Ct. 1525, 140 L. Ed. 2d 676 (1998). 

Plaintiff's attempt to join new party 
after running of statute of limitations was 
denied; plaintiff improperly substituted 
one party for another, not for a fictitiously 
named defendant, and therefore could not 
avail herself of relation back provisions of 
rules. Doe v. Mississippi Blood Servs., 
Inc., 704 So. 2d 1016 (Miss. 1997), cert, 
denied, 523 U.S. 1078, 118 S. Ct. 1525, 
140 L. Ed. 2d 676 (1998). 

Amended complaint correcting name of 
corporate defendant was not time-barred 
and related back to date of originally filed 
complaint, where company's insurance 
adjuster investigated claim soon after oc- 
currence and the same attorneys repre- 
sented both corporate entities. Brown v. 
Winn-Dixie Montgomery, Inc., 669 So. 2d 
92 (Miss. 1996). 

In determining the propriety of amend- 
ing a pleading which would otherwise be 
time barred because the limitations pe- 
riod had run, the claim stated in amend- 
ment must arise from the same transac- 
tion or occurrence as did the claim in 
original complaint, and the opposing 
party must have been put on notice re- 
garding the claim or defense raised by the 
amended pleading. Hudson v. Parvin, 582 
So. 2d 403 (Miss. 1991). 

Where plaintiff filed an amended com- 
plaint within ten days after her original 
complaint was dismissed under M.R.C.P. 
12(b)(6), she was not required to petition 



106 



RULES OF CIVIL PROCEDURE 



Rule 15 



court for 30 days leave, and her amended 
complaint related back to the date of her 
original complaint. O'Cain v. Harvey Free- 
man & Sons, 603 So. 2d 824 (Miss. 1991). 
Filing date of amended bill could not be 
used to meet residency period necessary 
for divorce, since amended bill related 
back to filing date of original bill. O'Neill 
v. O'Neill, 515 So. 2d 1208 (Miss. 1987). 

Statute of limitations. 

Because father's claim on a promissory 
note against a son would still be futile if a 
trial court allowed him to amend it under 
Miss. R. Civ. P. 15 due to the running of 
the statute of limitations, trial court did 
not err in denying the father's motion to 
amend and granting the son's motion to 
dismiss under Miss. R. Civ. P. 12(b)(6). 
Merideth v. Merideth, 987 So. 2d 477 
(Miss. Ct. App. 2008). 

Circuit court erred in dismissing the 
doctor as a defendant from the beneficia- 
ries' wrongful death claim where the time 
allowed by the medical malpractice stat- 
ute of limitations had not yet expired 
when the doctor was served with the 
amended complaint. Long v. Mem'l Hosp. 
at Gulfport, 969 So. 2d 35 (Miss. 2007). 

Patient's amended complaint, adding a 
doctor and clinic as defendants, could not 
be treated for purposes of the added par- 
ties as an original complaint; because only 
the motion to amend the complaint pursu- 
ant to Miss. R. Civ. P. 15(c) was considered 
filed before the expiration of the two-year 
statute of limitations under Miss. Code 
Ann. § 15-1-36, when the trial court de- 
nied the motion to amend, the practical 
effect was that no amended complaint had 
ever been filed. Wilner v. White, 929 So. 2d 
315 (Miss. 2006). 

Patient's motion for leave to amend was 
filed prior to the end of the limitation and 
service of process periods, however, the 
matter was not brought on for hearing 
until after the limitation and the process 
service window closed. An amendment to 
add a party at so late a date would relate 
back only if notice had been timely re- 
ceived, and "a mistake concerning the 
identity of the proper party" had existed or 
substitution of a newly identified party for 
a fictitious one was being made; even had 
the patient's complaint been amended im- 
mediately after the hearing on the motion 



to amend, it would not have related back 
since the patient was aware of the new 
defendants who were the subject of the 
proposed amendment and there was not 
reasonable diligence; therefore, the limi- 
tations period was not tolled. Wilner v. 
White, — So. 2d — , 2004 Miss. App. 
LEXIS 654 (Miss. Ct. App. July 13, 2004), 
opinion withdrawn by, substituted opinion 
at, remanded Uy 929 So. 2d 343, 2005 
Miss. App. LEXIS 1033 (Miss. Ct. App. 
2005). 

In a patient's negligence action, in 
granting the motion to amend the com- 
plaint four years after the initial suit to 
add the health care provider as a new 
party, it appeared obvious that the new 
"fraudulent concealment" argument was 
advanced as a "savings" option, because 
without it the statute of limitation on 
negligence actions would have barred any 
action; because the trial court erred in 
granting the motion to amend the com- 
plaint, the issue of whether or not the 
amended complaint would relate back be- 
came moot. Medicomp, Inc. v. Marshall, 
878 So. 2d 193 (Miss. Ct. App. 2004), cert, 
denied, 878 So. 2d 67 (Miss. 2004), cert, 
denied, — U.S. — , 125 S. Ct. 671, 160 L. 
Ed. 2d 508 (2004). 

In a contempt proceeding against the 
husband for not paying child support, the 
pleading of the Mississippi Department of 
Human Services (DHS) was not styled as 
an amendment to the wife's original com- 
plaint for child support arrearages and 
was not pled as such, new process was 
served on the husband, and the DHS 
failed to obtain permission from the chan- 
cellor to amend the petition; thus, the 
chancellor was correct in finding the 
DHS's petition stood alone, did not revive 
the wife's prior petition, and was barred 
by the statute of limitations. Miss. Dep't of 
Human Servs. v. Guidry, 830 So. 2d 628 
(Miss. 2002). 

In an action arising from a motor vehi- 
cle accident, the plaintiff should have 
been granted leave to amend her com- 
plaint to assert that the defendant's minor 
son was driving the defendant's vehicle at 
the time of the accident, notwithstanding 
the expiration of the statute of limita- 
tions, since (1) the defendant, as well as 
his minor son, had notice of the plaintiff's 



107 



Rule 16 



MISSISSIPPI COURT RULES 



claim within the apphcable statute of 
hmitations by virtue of the plaintiff's ne- 
gotiations with the defendant's insurer 
and ultimately, the action against the de- 
fendant, and (2) the defendant and his son 
knew or should have known that but for 
some error in identity, the son was the 
proper party and could not be said to have 
been prejudiced as the defendant retained 
counsel at the time the suit was insti- 
tuted. Estes V. Starnes, 732 So. 2d 251 
(Miss. 1999). 

Sua sponte. 

The trial court did not err in bifurcating 
trial in a proceeding to contest probate of 
a will and to allow amendment of the 
pleadings, notwithstanding that the par- 
ties did not make a motion for amendment 
and did not argue for an amendment. 
Smith V. Averill, 722 So. 2d 606 (Miss. 
1998). 

Timeliness. 

Car owner's request to amend her com- 
plaint was untimely and failed to conform 
to Miss. R. Civ. P. 15, in that the request to 
amend was made outside of the discovery 
window and the owner obtained neither 
leave of court nor the repair facility's 
written consent to amend. Beene v. Fergu- 
son Auto., Inc., 37 So. 3d 695 (Miss. Ct. 
App. 2010). 

Patron's personal injury suit against a 
store was remanded to the state court in 
which it was originally filed because the 
store removed the suit after the expiration 
of the one-year period in 28 U.S.C. 
§ 1446(b); the equitable exception to the 
one-year period did not apply because 
although the patron waited until just be- 
fore trial to amend her complaint to seek 



more than $75,000, such was warranted 
by new medical findings concerning the 
patron's injuries and was allowable under 
Miss. R. Civ. P 54(c) and Miss. R. Civ. R 
15. Smith V. Wal-Mart Stores, Inc., 489 R 
Supp. 2d 600 (N.D. Miss. 2007). 

Where leave to amend a complaint was 
sought at a hearing for summary judg- 
ment, but a motion for such was not filed 
until after summary judgment was 
granted, the motion was properly denied 
as untimely. Harmon v. Regions Bank, 961 
So. 2d 693 (Miss. 2007). 

Trial court erred in sua sponte entering 
a default judgment against a city under 
Miss. R. Civ. P. 55 in a suit brought under 
the Mississippi Tort Claims Act, specifi- 
cally Miss. Code Ann. § ll-46-9(l)(c); al- 
though the city did not timely answer 
plaintiff's amended complaint pursuant to 
Miss. R. Civ. P. 15(a), the parties contin- 
ued to engage in discovery for over four 
years and plaintiff had no intention of 
seeking of a default judgment. City of 
Jackson v. Presley, 942 So. 2d 777 (Miss. 
2006). 

Though former Miss. R. Civ. P. 15(a) en- 
titled plaintiffs to an automatic 30 days' 
leave to amend their complaint after the 
trial court granted defendants' motion for 
judgment on the pleadings, their failure to 
timely file an amended complaint justified 
the trial court's denial of their subsequent 
motion to amend the complaint. Lane v. R. 
J. Reynolds Tobacco Co., 853 So. 2d 1144 
(Miss. 2003). 

Trial court abused its discretion by al- 
lowing a party in a land dispute to amend 
her pleadings after commencement of trial 
to include a counterclaim for adverse pos- 
session, an affirmative defense. Brown v. 
Akin, 790 So. 2d 893 (Miss. Ct. App. 2001). 



Rule 16. Pre-trial procedure. 

In any action the court may, on its own motion or on the motion of any party, 
and shall on the motion of all parties, direct the attorneys for the parties to 
appear before it at least tv^enty days before the case is set for trial for a 
conference to consider and determine: 

(a) The possibility of settlement of the action; 

(b) the simplification of the issues; 

(c) the necessity or desirability of amendments to the pleadings; 

(d) itemizations of expenses and special damages; 

(e) the limitation of the number of expert witnesses; 



108 



RULES OF CIVIL PROCEDURE Rule 16 

(f) the exchange of reports of expert witnesses expected to be called by each 
party; 

(g) the exchange of medical reports and hospital records, but only to the 
extent that such exchange does not abridge the physician-patient privilege; 

(h) the advisability of a preliminary reference of issues to a master for 
findings to be used as evidence when the trial is to be by jury; 

(i) the imposition of sanctions as authorized by Rule 37; 

(j) the possibility of obtaining admissions of fact and-of documents and other 
exhibits which will avoid unnecessary proof; 

(k) in jury cases, proposed instructions, and in non-jury cases, proposed 
findings of fact and conclusions of law, all of which may be subsequently 
amended or supplemented as justice may require; 

(/) such other matters as may aid in the disposition of the action. 

The court may enter an order reciting the action taken at the conference, the 
amendments allowed to the pleadings, and the agreements made by the 
parties as to any other matters considered, and limiting issues for trial to those 
not disposed of by admissions or agreements of counsel; and such order when 
entered shall control the subsequent course of the action, unless modified at 
the trial to prevent manifest injustice. (Amended effective March 1, 1989; April 
13, 2000.) 

ADVISORY COMMITTEE HISTORICAL NOTE 

Effective April 13, 2000, Rule 16 was Effective March 1, 1989, Rule 16 was 

amended to allow the conference to be atnended to abrogate provisions for a pre- 

held pursuant to the court's motion. So. trial calendar. 536-538 So. 2d XXI (West 

2d. (West Miss.Cas. 2000). Miss. Gas. 1989). 

COMMENT 

Rule 16 governs the pretrial conference, cases, after they have been preliminarily 

It provides that such a conference may be agreed upon in the pretrial conference, 

held on the court's own motion or on the Also, it provides that the court may enter 

motion of any party and shall be held on a pretrial order, and if such order is en- 

the motion of all parties. It authorizes the tered it "shall control the subsequent 

amending or supplementing of proposed course of action unless modified." 

jury instructions, or of proposed findings [Comment amended April 18, 1995; 

of fact and conclusions of law in non-jury April 13, 2000.] 

JUDICIAL DECISIONS 

Construction. to the court. Watts v. Pennington, 598 So. 

Issues. 2d 1308 (Miss. 1992). 

Motion for recusal denied. 

Issues. 

Construction. Chancellor abused her discretion by al- 

Nothing in this rule or elsewhere allows lowing a wife to put forward evidence of 

a local court to unilaterally adopt a special her need for temporary rehabilitative ali- 

rule which is inconsistent with a uniform mony, in order "to be fair to both parties 

rule regarding the reporting of settlement and to do equity," where there had been no 

109 



Rule 16A MISSISSIPPI COURT RULES 

mention of alimony in the pre-trial state- ous and clear and did not indicate that 

ment. Singley v. Singley, — So. 2d — , 2003 alimony was an issue to be tried. Singley 

Miss. LEXIS 283 (Miss. June 12, 2003). v. Singley, — So. 2d — , 2000 Miss. App. 

Chancellor abused her discretion in LEXIS 456 (Miss. Ct. App. Sept. 26, 2000), 

awarding a wife alimony since alimony affirmed in part and reversed in part by, 

had not been mentioned in the pretrial remanded by 846 So. 2d 1004, 2002 Miss, 

statement and the chancellor could not LEXIS 309 (Miss. 2002), affirmed in part 

modify the pretrial statement: the parties and reversed in part by, remanded by 

had not agreed to modification, and the 2003 Miss. LEXIS 283 (Miss. June 12, 

chancellor did not find manifest injustice. 2003) 
Singley v. Singley, 846 So. 2d 1004 (Miss. 

2002). Motion for recusal denied. 

The chancellor abused her discretion in Trial court did not abuse its discretion 
determining that the issue of alimony was in denying plaintiff's motion for recusal 
a matter properly before it, notwithstand- where plaintiff failed to produce any evi- 
ing that the wife's counterclaim contained dence regarding either allegation of im- 
language requesting periodic and lump propriety; plaintiff produced no evidence 
sum alimony, since the pre-trial statement that the court administrator had any ma- 
produced by a joint effort of the parties, terial input into the court's judicial deci- 
approved by the chancellor, and entered sions. Hill v. Mills, 26 So. 3d 322 (Miss. 
by order of the chancellor was unambigu- 2010). 

Rule 16A. Motions for recusal of judges. 

Motions seeking the recusal of judges shall be timely filed v^ith the trial 
judge and shall be governed by procedures set forth in the Uniform Rules of 
Circuit and County Court Practice and the Uniform Rules of Chancery Court 
Practice. (Adopted, April 4, 2002.) 

COMMENT 

Motions for recusal should be timely URCCC 1.15 and Unif. Chanc. R. 1.11. See 

filed and should not be used for purposes also, M.R.A.P. 48B concerning review of 

of delay. Specific procedures for presenta- the trial judges' denial of motions to re- 

tion and consideration of motions seeking cuse under M.R.A.P. 21. [Adopted April 4, 

the recusal of judges are set forth in 2002] 

CHAPTER IV. PARTIES 

Rule 17. Parties plaintiff and defendant; capacity. 

(a) Real party in interest. Every action shall be prosecuted in the name of the 
real party in interest. An executor, administrator, guardian, bailee, trustee, a 
party v^ith v^hom or in v^hose name a contract has been made for the benefit of 
another, or a party authorized by statute may sue in his representative 
capacity v^ithout joining v^ith him the party for v^hose benefit the action is 
brought. No action shall be dismissed on the ground that it is not prosecuted 
in the name of the real party in interest until a reasonable time has been 
allov^ed after objection for ratification of commencement of the action by, or 
joinder or substitution of, the real party in interest; and such ratification, 
joinder or substitution shall have the same effect as if the action had been 
commenced in the name of the real party in interest. 

110 



RULES OF CIVIL PROCEDURE Rule 17 

(b) Subrogation cases. In subrogation cases, regardless of whether subroga- 
tion has occurred by operation of law, assignment, loan receipt, or otherwise, if 
the subrogor no longer has a pecuniary interest in the claim the action shall be 
brought in the name of the subrogee. If the subrogor still has a pecuniary 
interest in the claim, the action shall be brought in the names of the subrogor 
and the subrogee. 

(c) Infants or persons under legal disability. Whenever a party to an action 
is an infant or is under legal disability and has a representative duly appointed 
under the laws of the State of Mississippi or the laws of a foreign state or 
country, the representative may sue or defend on behalf of such party. A party 
defendant who is an infant or is under legal disability and is not so represented 
may be represented by a guardian ad litem appointed by the court when the 
court considers such appointment necessary for the protection of the interest of 
such defendant. The guardian ad litem shall be a resident of the State of 
Mississippi, shall file his consent and oath with the clerk, and shall give such 
bond as the court may require. The court may make any other orders it deems 
proper for the protection of the defendant. When the interest of an unborn or 
unconceived person is before the court, the court may appoint a guardian ad 
litem for such interest. If an infant or incompetent person does not have a duly 
appointed representative, he may sue by his next friend. 

(d) Guardian ad litem; how chosen. Whenever a guardian ad litem shall be 
necessary, the court in which the action is pending shall appoint an attorney to 
serve in that capacity. In all cases in which a guardian ad litem is required, the 
court must ascertain a reasonable fee or compensation to be allowed and paid 
to such guardian ad litem for his service rendered in such cause, to be taxed as 
a part of the cost in such action. 

(e) Public officers. When a public officer sues or is sued in his official 
capacity, he may be described as a party by his official title rather than by 
name; but the court may require his name to be added. 

COMMENT 

Rule 17 prescribes the general require- the purpose of this listing is to provide 
ments that must be satisfied regarding guidance in cases in which it might not be 
the plaintiff's interest in the subject mat- clear who the real party in interest is and 
ter of the proceeding and each litigant's to emphasize the fact that he might not be 
capacity either to sue or be sued. Rule the person beneficially interested in the 
17(a) sets forth the basic principle for potential recovery. Of course, the rule pre- 
determining who may bring an action by sumes that applicable substantive laws of 
requiring that it be prosecuted "in the Mississippi give the persons named in the 
name of the real party in interest," pro- rule the right to sue. Attempts have been 
vides specific capacity rules to be followed made to interpret Rule 17 of the Federal 
in actions involving infants or persons Rules of Civil Procedure (after which 
under legal disabilities, and provides for M.R.C.P. 17 was drafted) as creating an 
the appointment and remuneration of at- exception to the joinder requirements of 
torneys as guardians ad litem. Rule 19 by the portion of Rule 17(a) stat- 

The second sentence of Rule 17(a) con- ing that anyone listed "may sue in his own 

tains a specific enumeration of a number name without joining with him the party 

of persons who are real parties in interest; for whose benefit the action is brought"; 

111 



Rule 17 



MISSISSIPPI COURT RULES 



the courts have rejected this interpreta- 
tion and have held that Rule 17(a) as- 
sumes that the joinder of those benefi- 
cially interested in the action is not 
otherwise required. As a result, Rule 19 
always must be consulted to determine if 
all the necessary parties have been joined. 
6 Wright & Miller, Federal Practice and 
Procedure, Civil § 1543 (1971). 

The provision that no action shall be 
dismissed on the ground that it is not 
prosecuted in the name of the real party in 
interest until a reasonable time has been 
allowed, after the objection has been 
raised, for ratification, joinder, or substi- 
tution, is added simply in the interests of 
justice. Originally the rule was permissive 
in purpose: it was designed to allow an 
assignee to sue in his own name. That 
having been accomplished, the modern 
function of the rule in its negative aspect 
is simply to protect the defendant against 
a subsequent action by the party actually 
entitled to recover, and to ensure gener- 
ally that the judgment will have its proper 
effect as res judicata. See, Miss. Code Ann. 
§ 11-7-3 (1972); Smith v. Copiah County, 
219 Miss. 633, 69 So.2d 404 (1954). 

Rule 17(b) governs real parties in inter- 
est in subrogation cases. One of the most 
common instances of subrogation is when 
the insurer indemnifies its insured, at 
which time the former succeeds to what- 
ever rights the latter has against the 
person who allegedly caused the damage. 
Difficulties arise when the subrogated in- 
surer seeks to bring suit in the name of 
the insured in order to avoid the antipa- 
thy juries are thought to have toward 
insurance companies, especially as 
against an injured person. As a practical 
matter, of course, the insurance company 
will control the prosecution of the lawsuit 
no matter in whose name it is brought. 

The general rule under the federal 
equivalent of M.R.C.P 17(b) is that if an 
insurer has paid the entire claim it is the 
real party in interest and must sue in its 
own name. This is sound since it is logical 
that an insured who has no interest in the 
outcome of the litigation may not bring 
suit. See U.S. v. Aetna Cas. & Sur. Co., 338 
U.S. 366 [70 S. Ct. 207, 94 L.Ed. 171] 
(1949); American Fid. & Cas. Co. v. All 
Am. Bus Lines, Inc., 179 F.2d 7 (10th Cir. 



1949); 6 Wright & Miller, supra, Civil 
§ 1546. 

The insurer who pays a part of the loss 
is only partially subrogated to the rights 
of the insured. This may occur when the 
loss exceeds the coverage or when the 
insurance policy contains a deductible 
amount that must be borne by the in- 
sured. The respective rights of the parties 
in this situation parallel those when there 
has been a partial assignment: either the 
insured or the insurer may sue in his own 
name. See U.S. v. Aetna Cas. & Sur Co., 
supra. Thus, if the insured brings suit, the 
insurer who is partially subrogated may 
intervene in the action to protect his pro 
rata share of the potential recovery. See 
McDonald v. E. J. Lavino Co., 430 F.2d 
1065 (5th Cir. 1970); Smith Petroleum 
Serv. Inc. v. Monsanto Chem. Co., 420 F.2d 
1103 (5th Cir. 1970). If either sues and the 
other does not voluntarily join or inter- 
vene, the defendant may protect himself 
from multiple lawsuits, by having the ab- 
sent party joined. See U.S. v. Aetna Cas. & 
Sur Co., supra, Cross v. Harrington, 294 
F. Supp. 1340 (N.D.Miss. 1969); 6 Wright 
& Miller, supra. Civil § 1546. 

The first, sentence of M.R.C.P 17(c) 
provides that whenever an infant or per- 
son, under a legal disability has a repre- 
sentative, such as a guardian, conserva- 
tor, or other fiduciary, the representative 
may sue or defend on behalf of his ward. If 
the infant or person under a legal disabil- 
ity does not have a representative, he may 
be represented by a guardian ad litem. 

If the rights of an unborn or 
unconceived person are before the court, 
that person may also be represented by a 
guardian ad litem. Infants and persons 
under a legal disability may sue by their 
next friends. Rule 17(c) gives the court the 
discretion to appoint guardians ad litem 
when deemed necessary For an example 
of when the appointment of a guardian ad 
litem was held unnecessary to protect an 
infant, See Hutton v. Hutton, 233 Miss. 
458, 102 So.2d 424 (1958). The rule also 
sets forth the general, professional quali- 
fications for a guardian ad litem. 

Rule 17(d) provides that when the ap- 
pointment of a guardian becomes neces- 
sary, the court shall appoint an attorney 
to serve in that capacity, whose compen- 



112 



RULES OF CIVIL PROCEDURE 



Rule 17 



sation shall be determined by the court 
and taxed as a cost of the action. Rules, 
17(c) and (d) are adapted from Miss. Code 
Ann. § 9-5-89 (1972). See also V. Griffith, 
Mississippi Chancery Practice, § 34 (2d 
ed. 1950). 

Rule 17(e) permits public officials to be 
referred to by their official titles when 



sued or suing in their official capacities; 
however, the trial court is empowered to 
require that the official's proper name be 
added. This subsection appears as Federal 
Rule 25(d)(2); however, since it pertains 
more to capacities and interests of parties 
than to substitution of parties, it was 
moved to Rule 17. 



JUDICIAL DECISIONS 



Guardians ad litem. 

Notice. 

Real party in interest. 

Res judicata effect. 

Subrogation. 

Survival action. 

Wrongful death actions. 

Guardians ad litem. 

Chancery court did not abuse its discre- 
tion in apportioning the costs of a guard- 
ian ad litem equally among the parties in 
a child custody dispute, without consider- 
ing a mother's financial circumstances; 
there is no evidence in the record to indi- 
cate that the apportionment of the cost for 
the guardian ad litem was an undue bur- 
den to either party. McCraw v. Buchanan, 
10 So. 3d 979 (Miss. Ct. App. 2009). 

Fee paid to the guardian ad litem was 
proper where the youth court recognized 
the complexity of the case and awarded 
the guardian a higher amount than what 
it considered reasonable for the usual 
case. Miss. Code Ann. § 43-21-121(6); fur- 
ther, the guardian failed to point to any- 
thing that indicated that the youth court's 
decision was unreasonable or that the 
court had abused its discretion as to the 
amount of compensation, Miss. R. Civ. P. 
17(d). In the Interest of L.D.M., 872 So. 2d 
655 (Miss. 2004). 

The Department of Human Services 
was properly required to pay a portion of 
the guardian ad litem fees incurred after 
it was made a passive litigant in a pro- 
ceeding for modification of visitation 
where the husband alleged physical and 
sexual abuse of the child at issue, the 
department supported this allegation, and 
the court found that no such abuse oc- 
curred. Mississippi Dep't of Human Servs. 
V. Murr, 797 So. 2d 818 (Miss. 2000). 

In a proceeding for modification of 
vistation in which the Department of Hu- 



man Services joined the action and sup- 
ported the father, the department was 
properly required to pay guardian ad 
litem fees including those incurred after 
the date that the department was made a 
passive litigant in the case; notwithstand- 
ing the department's passive role, it pre- 
viously became a litigant when it adopted 
the position of the father and alleged child 
abuse, and taking a passive role in the 
litigation did not change its status as a 
party to the case. Mississippi Dep't of 
Human Servs. v. Murr, 797 So. 2d 818 
(Miss. 2000). 

County board of supervisors was not 
required to pay guardian ad litem's fee 
under subdivision (d) of this rule, where 
case in which the guardian's services were 
rendered had been appealed, and it could 
not be ascertained against whom the costs 
would finally be assessed. Lowrey v. For- 
rest County Bd. of Supvrs., 559 So. 2d 
1029 (Miss. 1990). 

Guardian ad litem fee under subdivi- 
sion (d) of this rule was not a "cost of 
preparation of the record on appeal" under 
M.R.A.P Rule 11(b)(1), and therefore pre- 
payment of fee was not required for pro- 
cessing of appeal to supreme court. In re 
Newsom, 536 So. 2d 1 (Miss. 1988). 

Appointment of guardian ad litem was 
needed to insure and protect best inter- 
ests of child who filed paternity suit 
against her presumed natural father, 
since, in context of divorce action, interest 
of child's mother might not be coextensive 
with the interest of the child. Baker v. 
Wilhams, 503 So. 2d 249 (Miss. 1987). 

Notice. 

Estate was properly noticed of the hear- 
ing on the motion for summary judgment 
where the estate, not the heir who filed 
the motion for summary judgment, 



113 



Rule 17 



MISSISSIPPI COURT RULES 



elected not to notice each beneficiary of 
the will. The beneficiaries were named in 
the probated will and the executor was 
acting on behalf of all the beneficiaries to 
set aside the deeds in order to bring the 
real property back into the estate. Smith 
V. Smith (In re Will of Smith), 910 So. 2d 
562 (Miss. 2005). 

Real party in interest. 

In a property damage case, because 
there was no authority cited for the prop- 
osition that an action filed on behalf of a 
dissolved corporation should have been 
treated as being filed against a partner- 
ship, appellate review of the issue was 
precluded. In addressing the merits of the 
issue, it was determined that a dissolved 
corporation could not have been a real 
party in interest because it had been dis- 
solved more than eight years before the 
alleged incident took place, and there was 
an opportunity given to substitute the real 
party in interest. Funderburg v. Pontotoc 
Elec. Power Ass'n, 6 So. 3d 439 (Miss. Ct. 
App. 2009). 

Dismissal of an action alleging waste 
due to the cutting of timber was improp- 
erly dismissed on the basis that an estate 
lacked standing to bring the action since it 
had no interest therein and no power to 
bring such an action; the trial court 
should have allowed a substitution of the 
heirs as parties to the action. Tolbert v. 
Southgate Timber Co., 943 So. 2d 90 
(Miss. Ct. App. 2006). 

Although Miss. R. Civ. P. 25(c) transfers 
were generally permissive, the execution 
sale and purchase of lawsuits, as choses in 
action, left only one party, a bank, with 
any interest in the litigation; because 
Miss. R. Civ. P. 17 allowed only the real 
party in interest to prosecute its claims, 
the trial court abused its discretion by 
refusing to substitute the bank as plaintiff 
in the actions. Citizens Nat'l Bank v. Dix- 
ieland Forest Prods., LLC, 935 So. 2d 1004 
(Miss. 2006). 

Trial court did not err by granting the 
corporations summary judgment on the 
issue of standing in the law firm's anti- 
trust lawsuit, as the law firm's clients only 
had standing to object to any fees associ- 
ated with retrieval of their medical re- 
cords under Miss. Code Ann. § 41-9-65, 
and the law firm was not a real party in 



interest under Miss. R. Civ. P. 17(a). Owen 
& Galloway, L.L.C. v. Smart Corp., 913 So. 
2d 174 (Miss. 2005). 

Res judicata effect. 

Where a father entered into a stipula- 
tion to dismiss a driver from a negligence 
case with prejudice, his minor son was 
unable to assert the same cause of action 
against the driver when he reached the 
age of majority, pursuant to the doctrine of 
res judicata. Taylor v. Taylor, 835 So. 2d 60 
(Miss. 2003). 

Subrogation. 

Plaintiff was a real party in interest, as 
opposed to a nominal party, in an unsuc- 
cessful property damage suit brought by 
subrogated insurance carrier, and plain- 
tiff was therefore barred from pursuing a 
subsequent action under doctrines of res 
judicata and collateral estoppel. Alexan- 
der V Elzie, 621 So. 2d 909 (Miss. 1992). 

Where subrogated insurer assigned to 
plaintiff whatever rights it might have by 
virtue of subrogation, and chose instead to 
rely upon its contractual right against 
plaintiff in the event of recovery, the in- 
surer was no longer a real party in inter- 
est as contemplated by subdivision (a) of 
this rule. Turner v. Haynes, 489 So. 2d 494 
(Miss. 1986). 

Survival action. 

Where summary judgment was granted 
in a daughter wrongful death complaint, 
and upon remand the complaint was 
amended to allege a survival action under 
Miss. Code Ann. § 91-7-233 with the es- 
tate added as a party, the real party in 
interest joined the suit within a reason- 
able time after objection pursuant to Miss. 
R. Civ. P. 17. Methodist Hosp. of Hatties- 
burg, Inc. v Richardson, 909 So. 2d 1066 
(Miss. 2005). 

Wrongful death actions. 

Dismissal of a wrongful death suit was 
proper because the great-nephew lacked 
standing to institute a wrongful death suit 
under Miss. Code Ann. § 11-7-13, which 
conferred standing only to a decedent's 
spouse, parent, child, or sibling and not to 
distant relatives; the great-nephew also 
lacked standing because he was not the 
administrator of the decedent's estate 
when the wrongful death suit was com- 



114 



RULES OF CIVIL PROCEDURE 



Rule 18 



menced, and standing was to be deter- 
mined as of the commencement of the 



action. Delta Health Group, Inc. v. Estate 
of Pope, 995 So. 2d 123 (Miss. 2008). 



Rule 18. Joinder of claims and remedies. 

(a) Joinder of claims. A party asserting a claim to relief as an original claim, 
counter-claim, cross-claim, or third-party claim, may join, either as indepen- 
dent or as alternate claims, as many claims as he has against an opposing 
party 

(b) Joinder of remedies. Whenever a claim is one heretofore cognizable only 
after another claim has been prosecuted to a conclusion, the two claims may be 
joined in a single action; but the court shall grant relief in that action only in 
accordance with the relative substantive rights of the parties. 

COMMENT 



The purpose of Rule 18 is to eliminate 
piecemeal litigation by permitting liberal 
joinder of claims. 

Rule 18(a) eliminates any restrictions 
on claims that may be joined in actions in 
the courts of Mississippi. Rule 18(a) per- 
mits a party to join as many original 
claims, counter-claims, cross-claims, or 
third-party claims as he has against an 
opposing party. Similarly, legal and equi- 
table claims or any combination of them 
may be joined in one action; a party may 
also assert alternative claims for relief, 
consistency among the claims not being 
necessary; consequently, an election of 
remedies or theories will not be required 
at the pleading stage of the litigation. 

Rule 18(a) is intended to have its pri- 
mary application during the pleading 
stage. Thus, the rule should be read in 
conjunction with the provisions governing 
pleading: in essence, any claim joined un- 
der Rule 18(a) must be set forth in accor- 
dance with Rule 8, which requires a short 
and plain statement showing that the 
pleader is entitled to relief; if the claim 
involves a subject described in Rule 9 
(pleading special matters), then it may 
have to be delineated with more specificity 
than is required by Rule 8; Rule 19(b) 
necessitates that claims based on differ- 
ent transactions be separately stated 
when it would facilitate the clear presen- 
tation of the matters set forth in the 
pleadings; and Rule 11 requires that every 
pleading be signed by the litigant's attor- 
ney certifying that to the best of his 



knowledge, information, and belief there 
are good grounds to support the claims 
advanced in the pleading. 

Since Rule 18(a) deals only with the 
scope of joinder at the pleading stage and 
not with questions of trial convenience, 
jurisdiction, or venue, a party should be 
permitted to join all the claims he has 
against his opponent as a matter of right. 
The rule proceeds on the theory that no 
inconvenience can result from the joinder 
of any two or more matters in the plead- 
ings, but only from trying two or more 
matters together, if at all. 

In circuit court actions in which legal 
and equitable claims are asserted, the 
traditional procedure has been to move to 
transfer the action to chancery court. 
However, if the action is not transferred, 
the judgment will not be reversed on ap- 
peal solely because all or part of the sub- 
ject matter was technically beyond the 
court's jurisdiction. Rule 18(a) will effec- 
tuate no change in this procedure. See V. 
Griffith, Mississippi Chancery Practice, 
508-517(a) (2d ed. 1950); Miss. Const. 
§ 147 (no reversal on appeal if action tried 
in wrong court, absent any other error); 
§ 157 (transfer of actions from circuit 
court to chancery court); § 162 (transfer 
of actions from chancery court to circuit 
court). See, McLean v. Green, 352 So. 2d 
1312 (Miss.1977). 

It must be remembered, however, that 
Miss. Const. § 147 does not bestow equi- 
table remedies upon the law courts nor 
does it bestow common-law remedies upon 
the chancery courts. 



115 



Rule 19 



MISSISSIPPI COURT RULES 



Rule 18(b) permits a party to join two 
claims even though if they were asserted 
independently it would be necessary to 
prosecute one of them successfully before 
proceeding to the adjudication of the 
other. The provision is unqualified and 
allows the joinder of any type of contin- 
gent claim. The basic purpose of the rule 
is to reinforce the notion that a party 



should be able to obtain in a single action 
all the relief to which he is entitled. 

For discussion of Federal Rule 18, after 
which M;R.C.R 18 is patterned, See 6 
Wright & Miller, Federal Practice and 
Procedure, Civil §§ 1581-1594 (1971); 3A 
Moore's Federal Practice ff 18.01-. 10 
(1968). 



JUDICIAL DECISIONS 



Joinder of claims. 
Joinder of remedies. 

Joinder of claims. 

All claims for the wrongful death of a 
person must be litigated in the same suit 
and in the same court. Long v. McKinney, 
897 So. 2d 160 (Miss. 2004). 

In a wrongful death action, a court 
erred by failing to consolidate beneficia- 
ries' separate suit filed one day after the 
decedent's daughter's suit because the 
daughter filed suit as the representative 
of all statutory beneficiaries, and all such 
beneficiaries should have received notice 
of the litigation. Because there was no 
apparent conflict of interest between ap- 
pellee and the estate, and since the estate, 
through appellee as administratrix, em- 
ployed a law firm to represent the estate, 
that firm should represent the estate, pro- 



vided the pleadings were amended to as- 
sert a claim on behalf of the estate. Long v. 
McKinney, 897 So. 2d 160 (Miss. 2004). 

Actions sounding in both contract and 
tort may be joined in the same complaint. 
Trammell v. State, 622 So. 2d 1257 (Miss. 
1993). 

Although the different claims required 
different burdens of proof, they could still 
be joined in one action. Towner v. Moore ex 
rel. Quitman County Sch. Dist., 604 So. 2d 
1093 (Miss. 1992). 

Joinder of remedies. 

Party may combine a suit to determine 
heirship with a suit to contest a will, and 
will contestant's allegation that she was 
decedent's sole heir at law was sufficient 
as a request for determination of heirship. 
Dees V. Estate of Moore, 562 So. 2d 109 
(Miss. 1990). 



Rule 19. Joinder of persons needed for just adjudication. 

(a) Persons to be joined if feasible. A person v^ho is subject to the jurisdiction 
of the court shall be joined as a party in the action if: 

(1) in his absence complete relief cannot be accorded among those already 
parties, or 

(2) he claims an interest relating to the subject of the action and is so 
situated that the disposition of the action in his absence may (i) as a practical 
matter impair or impede his ability to protect that interest or (ii) leave any of 
the persons already parties subject to a substantial risk of incurring double, 
multiple, or otherwise inconsistent obligations by reason of his claimed 
interest. 

If he has not been so joined, the court shall order that he be made a party. If 
he should join as a plaintiff but refuses to do so, he may be made a defendant 
or, in a proper case, an involuntary plaintiff. 

(b) Determination by court whenever joinder not feasible. If a person as 
described in subdivision (a) hereof cannot be made a party, the court shall 
determine whether in equity and good conscience the action should proceed 
among the parties before it or should be dismissed, the absent person being 



116 



RULES OF CIVIL PROCEDURE 



Rule 19 



thus regarded as indispensable. The factors to be considered by the court 
include: First, to what extent a judgment rendered in the person's absence 
might be prejudicial to him or those already parties; second, the extent to 
which, by protective provisions in the judgment, by the shaping of relief, or 
other measures, the prejudice can be lessened or avoided; third, whether a 
judgment rendered in the person's absence will be adequate; fourth, whether 
the plaintiff will have an adequate remedy if the action is dismissed for 
nonjoinder. 

(c) Pleading reasons for nonjoinder A pleading asserting a claim for relief 
shall state the names, if known to the pleader, of any persons as described in 
subdivision (a)(1) through (2) who are not joined, and the reasons why they are 
not joined. 

COMMENT 



The purpose of Rule 19 is to permit a 
court to balance the rights of all persons 
whose interests are involved in an action. 

Compulsory joinder is an exception to 
the general practice of giving the plaintiff 
the right to decide who shall be parties to 
a law suit; although a court must take 
cognizance of this traditional prerogative 
in exercising its discretion under Rule 19, 
plaintiff's choice will have to be compro- 
mised when significant countervailing 
considerations make the joinder of partic- 
ular absentees desirable. 

There are at least four main questions a 
court must consider when deciding a ques- 
tion of joinder under Rule 19: First, the 
plaintiff's interest in having a forum; sec- 
ond, the defendant's wish to avoid multi- 
ple litigation, inconsistent relief, or sole 
responsibility for a liability he shares with 
another; third, the interest of an outsider 
whom it would have been desirable to join; 
fourth, the interest of the courts and the 
public in complete, consistent, and effi- 
cient settlement of controversies. This list 
is by no means exhaustive or exclusive; 
pragmatism controls. 

There is no precise formula for deter- 
mining whether a particular nonparty 
must be joined under Rule 19(a). The 
decision has to be made in terms of the 
general policies of avoiding multiple liti- 
gation, providing the parties with com- 
plete and effective relief in a single action, 
and protecting the absent persons from 
the possible prejudicial effect of deciding 
the case without them. Account also must 



be taken of whether other alternatives are 
available to the litigants. By its very na- 
ture Rule 19(a) calls for determinations 
that are heavily influenced by the facts 
and circumstances of individual cases. 

The structure of Rule 19 reflects the 
analytical sequence that a court should 
follow in deciding a party joinder problem. 
Once an issue of compulsory joinder is 
raised, the court initially must determine 
whether the absent person's interest in 
the litigation is sufficient to satisfy one or 
more of the tests set out in the first 
sentence of Rule 19(a). When it does, the 
second sentence of the subdivision states 
that if he has not been joined, "the court 
shall order that he be made a party." If the 
absent person should be regarded as a 
plaintiff but refuses to join, the court may 
join him as a defendant or, in a proper 
case, as an involuntary plaintiff. 

Difficulties arise only if the absentee 
cannot be effectively joined because he is 
not subject to service of process, if his 
joinder will deprive the court of subject 
matter jurisdiction, or if he makes a valid 
objection to the court's venue after joinder. 
When joinder of someone described in 
Rule 19(a) is not feasible, the court must 
examine the four considerations described 
in Rule 19(b) to determine whether the 
action may go forward in his absence or 
must be dismissed, "the absent person 
being thus regarded as indispensable." By 
proceeding in this orderly fashion, the 
court would be able to avoid grappling 
with the difficult question of indispens- 



117 



Rule 19 



MISSISSIPPI COURT RULES 



ability whenever it initially decides that 
the absentee's interest is not sufficient to 
warrant compelling his joinder. The first 
joinder standard, which is described in 
Rule 19(a)(1), is designed to protect those 
who are already parties by requiring the 
presence of all persons who have an inter- 
est in the litigation so that any relief that 
may be awarded will effectively and com- 
pletely adjudicate the dispute. The second 
test set out in Rule 19 (a) relates the 
situations in which the action cannot be 
effectively adjudicated because the absen- 
tee claims an interest in the subject mat- 
ter of the action, and disposing of the case 
in his absence may prejudice either those 
already before the court or the absentee 
himself. See 7 Wright & Miller, Federal 
Practice and Procedure, Civil § 1604 
(1972). 

Generally, Rule 19 comports with tradi- 
tional Mississippi practice; however, the 



rule effectuates at least one significant 
modification. Under M.R.C.P. 19, a person 
needed for just adjudication must be 
joined and may be joined as a defendant if, 
although properly a plaintiff, he refuses to 
join the suit voluntarily. Under prior prac- 
tice the suit must be dismissed if a neces- 
sary party cannot be joined. Comment, 
Procedural Reform in Mississippi: A Cur- 
rent Analysis, 47 Miss.L.J. 33, 5859 
(1976), citing Terry v. Unknown Heirs of 
Gibson, 108 Miss. 749, 67 So. 209 (1915); 
Gates V. Union Naval Stores Co., 92 Miss. 
227, 45 So. 979 (1908); Borroughs v. Jones, 
78 Miss. 235, 28 So. 944 (1900); Lemmon 
V. Dunn, 61 Miss. 210 (1883); See also V. 
Griffith, Mississippi Chancery Practice 
§§ 137-150 (2d ed. 1950); 7 Wright & 
Miller, supra, §§ 1601-1625; 3A Moore's 
Federal Practice ff 19.01-.20 (1974). 



JUDICIAL DECISIONS 



Adoption proceedings. 
Dismissal. 

Indispensable parties. 
Interest in litigation. 
Parties; necessary. 
Parties; unnecessary. 
Preservation for review. 

Adoption proceedings. 

The maternal grandparents should 
have been joined as parties in an adoption 
proceeding where they had filed a suit for 
custody of the child at issue. S.R. v. P.L.H., 
748 So. 2d 853 (Miss. Ct. App. 1999). 

Dismissal. 

Trial court did not err in dismissing 
claim for sub-surface trespass and conver- 
sion, due to plaintiff's failure to join all 
affected mineral interest holders. Ladner 
V. Quality Exploration Co., 505 So. 2d 288 
(Miss. 1987). 

Indispensable parties. 

In an action alleging waste, a trial court 
should have allowed an amendment to 
join two owners of property that gave 
permission to cut timber since they might 
have been indispensable parties under 
Miss. R. Civ. P. 19. Tolbert v. Southgate 
Timber Co., 943 So. 2d 90 (Miss. Ct. App. 
2006). 



United States was not an indispensable 
party to litigation involving a rural elec- 
tric power association's ability to engage 
in the business of selling propane, even 
though the Rural Electrification Adminis- 
tration had a security interest in the as- 
sociation's property. Tallahatchie Valley 
Elec. Power Ass'n v. Miss. Propane Gas 
Ass'n, 812 So. 2d 912 (Miss. 2002). 

Transferee, as owner of certain percent- 
ages property interests at issue in the 
litigation, had interests in both the prop- 
erty and in the litigation. As such, it was a 
necessary and indispensable party which 
should have been joined upon defendant's 
motion. TXG Intrastate Pipeline Co. v. 
Grossnickle, 716 So. 2d 991 (Miss. 1997). 

County board of supervisors was an 
indispensable party to action involving 
effect of zoning ordinance on railroad, and 
the board was to be made a party on 
remand. Columbus & G. Ry. v. Scales, 578 
So. 2d 275 (Miss. 1991). 

No proper and complete adjudication of 
dispute involving real estate lien could be 
made in absence of persons owning inter- 
ests in the property affected; procedural 
due process required that they be given 
notice and an opportunity to be heard. 
Aldridge v. Aldridge, 527 So. 2d 96 (Miss. 
1988). 



118 



RULES OF CIVIL PROCEDURE 



Rule 19 



Interest in litigation. 

City was not a necessary party in a 
landowner's action for ejectment against a 
developer because the city had no interest, 
actual or mistaken, with the disputed 
strip of land, and its absence in the matter 
did not prevent the chancery court from 
granting complete relief between the de- 
veloper and the landowner; when the ac- 
tion began, either the developer or the 
landowner owned the disputed property, 
and a conveyance to the developer in- 
volved the unplatted portion of a subdivi- 
sion, with no dedication provision for the 
city contained therein. Delta Hous. Dev. 
Corp. V. Johnson, 48 So. 3d 573 (Miss. Ct. 
App. 2010), writ of certiorari denied en 
banc by 49 So. 3d 1139, 2010 Miss. LEXIS 
628 (Miss. 2010). 

In a wrongful death action, a court 
erred by failing to consolidate beneficia- 
ries' separate suit filed one day after the 
decedent's daughter's suit because the 
daughter filed suit as the representative 
of all statutory beneficiaries, and all such 
beneficiaries should have received notice 
of the litigation. Because there was no 
apparent conflict of interest between ap- 
pellee and the estate, and since the estate, 
through appellee as administratrix, em- 
ployed a law firm to represent the estate, 
that firm should represent the estate, pro- 
vided the pleadings were amended to as- 
sert a claim on behalf of the estate. Long v. 
McKinney, 897 So. 2d 160 (Miss. 2004). 

All claims for the wrongful death of a 
person must be litigated in the same suit 
and in the same court. Long v. McKinney, 
897 So. 2d 160 (Miss. 2004). 

Fact that parties had pending applica- 
tions before Environmental Quality Per- 
mit Board did not give them an interest in 
the litigation, where the litigation did not 
challenge the issuance of specific permits 
by the board, but challenged the gover- 
nor's authority to adopt a rule without 
public input. Fordice v. Thomas, 649 So. 
2d 835 (Miss. 1995), but see USPCI of 
Miss., Inc. V. State ex rel. McGowan, 688 
So. 2d 783 (Miss. 1997). 

Parties; necessary. 

Circuit court could not fully and com- 
pletely determine priority of garnishors 
without first retrying that the creditor 
join the prior garnishors under Miss. R. 



Civ. P. 19(a). The prior garnishors had a 
significant pecuniary interest in the dis- 
position of the creditor's motion to deter- 
mine priority and the circuit court's sub- 
sequent fulfillment of that request. Y-D 
Lumber Co. v. Humphreys County, 2 So. 
3d 793 (Miss. Ct. App. 2009). 

Administratrix's negligence claims 
against the healthcare providers and doc- 
tors was wrongful death case, and as such 
was a Miss. R. Civ. P. 19 compulsory 
joinder case and governed by Miss. Code 
Ann. § 11-7-13; thus, the trial court erred 
by transferring venue as to each doctor to 
separate counties, and venue for the 
wrongful death claim was proper in Boli- 
var County. Rose v. Bologna, 942 So. 2d 
1287 (Miss. 2006). 

Neighbor's claim that all necessary par- 
ties were not joined in the suit was with- 
out merit where the neighbor did not 
identify a specific party that was neces- 
sary to the action; based on the evidence, 
the appellate court found that all neces- 
sary parties were joined. Fike v. Shelton, 
860 So. 2d 1227 (Miss. Ct. App. 2003). 

Because the State was the ultimate 
fee-holder of 16th Section lands, it was 
therefore a necessary party to any action 
that might forever divest it of title in those 
lands; when the board of education filed a 
complaint to quiet and confirm title, and 
the landowners counterclaimed for clear 
title on their behalf, the suit became one 
that endangered the State's interest in 
protecting its asserted title and the failure 
to join the State as an interested party in 
a real estate dispute justified reversal and 
remand as the failure was a violation of 
fundamental due process. Bd. of Educ. v. 
Warner, 853 So. 2d 1159 (Miss. 2003). 

Trial court did not err in noticing the 
absence of a necessary party and ordering 
a joinder, and when the need for the 
joinder disappeared, the chancellor, recog- 
nizing the change in circumstances, did 
not err in entering a final judgment. Flow- 
ers V. McCraw, 792 So. 2d 339 (Miss. Ct. 
App. 2001). 

Any court sitting as an appellate court 
has inherent authority to allow additional 
parties to participate in appeal upon 
timely application or upon the court's in- 
vitation; indeed, there may be occasions 
when the court should decline to act until 



119 



Rule 20 



MISSISSIPPI COURT RULES 



all necessary parties have been joined. 
Cummings v. Benderman, 681 So. 2d 97 
(Miss. 1996). 

Wife of defendant should have been 
made a party to action involving boundary 
dispute, where she owned a half interest 
in land, it was her homestead, and her 
husband could not make any binding 
agreement concerning land without her 
participation. Mabry v. Howington, 569 
So. 2d 1165 (Miss. 1990). 

Parties; unnecessary. 

Chancellor did not err in approving the 
final accounting and discharging the con- 
servator because under Miss. R. Civ. P. 19 
joinder was not feasible because no person 
had been appointed to represent the es- 
tate, the estate suffered no prejudice, and 
neither Miss. Code Ann. § 93-13-67 nor 
caselaw indicated that the failure of the 
conservator to file accountings was fatal to 
the approval of a final accounting. Vinson 
V. Benson, 972 So. 2d 694 (Miss. Ct. App. 
2007), writ of certiorari denied by 973 So. 
2d 244, 2008 Miss. LEXIS 8 (Miss. 2008). 

Condemning authority in eminent do- 
main action was not required to join 
neighboring landowner, a portion of whose 
land was held by condemnee by adverse 



possession. Coats v. Yazoo City, 562 So. 2d 
64 (Miss. 1990). 

Owners of property containing access 
road to subdivision in violation of county 
ordinance were not indispensable parties 
to county's action to bring subdivision into 
compliance. Johnson v. Hinds County, 524 
So. 2d 947 (Miss. 1988). 

Preservation for review. 

Even if a buyer from a tax sale was a 
necessary and indispensable party under 
Miss. R. Civ. P. 19 to a proceeding where 
the redemption period in Miss. Code Ann. 
§ 27-45-3 was extended for 60 days, the 
buyer's successor in interest was proce- 
durally barred from bringing its Miss. R. 
Civ. P. 19 objection on appeal since the 
issue was not raised. The issue was not 
heard sua sponte in accordance with Shaw 
V. Shaw, 603 So. 2d 287 (Miss. 1992), 
because the buyer was notified by letter of 
the foreclosure sale and the possibility 
that the tax redemption period could be 
extended, this knowledge was imputed to 
the successor in interest, and neither the 
buyer nor the successor in interest chose 
to challenge the joinder issue until after 
the conclusion of the trial court proceed- 
ings. Marathon Asset Mgmt., LLC v. Otto, 
977 So. 2d 1241 (Miss. Ct. App. 2008). 



Rule 20. Permissive joinder of parties. 

(a) Permissive joinder. All persons may join in one action as plaintiffs if they 
assert any right to relief jointly, severally, or in the alternative in respect of or 
arising out of the same transaction, occurrence, or series of transactions or 
occurrences, and if any question of law or fact common to all these persons v^ill 
arise in the action. All persons may be joined in one action as defendants if 
there is asserted against them jointly, severally, or in the alternative, any right 
to relief in respect of or arising out of the same transaction, occurrence, or 
series of transactions or occurrences, and if any question of lav^ or fact common 
to all defendants v^ill arise in the action. A plaintiff or defendant need not be 
interested in obtaining or defending against all the relief demanded. Judgment 
may be given for one or more of the plaintiffs according to their respective 
rights to relief, and against one or more defendants according to their 
respective liabilities. 

(b) Separate trials. The court may make such orders as will prevent a party 
from being embarrassed, delayed, or put to expense by the inclusion of a party 
against whom the party asserts no claim and who asserts no claim against the 
party, and may order separate trials or make other orders to prevent delay or 
prejudice. 



120 



RULES OF CIVIL PROCEDURE 



Rule 20 



COMMENT 



The purpose of Rule 20 is to promote 
trial convenience and expedite the final 
determination of disputes, thereby pre- 
venting multiple law suits. The rule is 
permissive in character; joinder in situa- 
tions falling within the rule's standard is 
not required unless it is within the scope 
of compulsory joinder prescribed by Rule 
19. 

Rule 20(a) permits joinder in a single 
action of all persons asserting or defend- 
ing against a joint, several, or alternative 
right to relief that arises out of the same 
transaction or occurrence or series of 
transactions or occurrences and presents 
a common question of law or fact. The 
phrase "transaction or occurrence" re- 
quires that there be a distinct litigable 
event linking the parties. Rule 20(a) sim- 
ply establishes a procedure under which 
several parties' demands arising out of the 
same litigable event may be tried to- 
gether, thereby avoiding the unnecessary 
loss of time and money to the court and 
the parties that the duplicate presenta- 
tion of the evidence relating to facts com- 
mon to more than one demand for relief 
would entail. 

Joinder of parties under Rule 20(a) is 
not unlimited as is joinder of claims under 
Rule 18(a). Rule 20(a) imposes two specific 
requisites to the joinder of parties: (1) a 
right to relief must be asserted by or 
against each plaintiff or defendant relat- 
ing to or arising out of the same transac- 
tion, occurrence, or the same series of 
transactions or occurrences; and, (2) some 
question of law or fact common to all the 
parties will arise in the action. Both of 
these requirements must be satisfied in 
order to sustain party joinder under Rule 
20(a). See American Bankers Inc. of Flor- 
ida V. Alexander, 818 So. 2d 1073, 1078. 
However, even if the transaction require- 
ment cannot be satisfied, there always is a 
possibility that, under the proper circum- 



stances, separate actions can be instituted 
and then consolidated for trial under Rule 
42(a) if there is a question of law or fact 
common to all the parties. See Stoner v. 
Coluin, 236 Miss. 736, 748, 110 So.2d 920, 
924 (1959) (courts of general jurisdiction 
have inherent power to consolidate action 
when called for By the circumstances). If 
the criteria of Rule 20 are otherwise met, 
the court should consider whether differ- 
ent injuries, different damages, different 
defensive postures and other individual- 
ized factors will be so dissimilar as to 
make management of cases consolidated 
under Rule 20 impractical. See Demboski 
V. CSX Transp., Inc.lbl F.R.D. 28 (S.D. 
Miss 1994).) cited with approval in Illinois 
Cen. R.R. Coj. v. Travis,mS So. 2d 928, 
934 (Miss. 2002). 

Rule 20(b) gives the court authority to 
order separate trials or make any other 
order to prevent another party from being 
embarrassed, delayed, prejudiced, or put 
to unnecessary expense by the joinder of a 
party against whom the party asserts no 
claim and who asserts no claim against 
the party. Aside from emphasizing the 
availability of separate trials. Rule 20(b) 
has little significance inasmuch as the 
power granted the court therein also is 
provided by the much broader grant of 
discretion set forth in Rule 42(b). See 3A 
Moore's Federal Practice W 20.01-.08 
(1968); 7 Wright & Miller, Federal Prac- 
tice and Procedure, Civil §§ 1651-1660 
(1972). 

In order to allow the court to make a 
prompt determination of whether joinder 
is proper, the factual basis for joinder 
should be fully disclosed as early as prac- 
ticable, and motions questioning joinder 
should be filed, where possible, suffi- 
ciently early to avoid delays in the pro- 
ceedings. 

[Comment amended February 20, 
2004.] 



JUDICIAL DECISIONS 



Construction. 
Adding parties. 
Fraudulent misjoinder. 
Interpretation. 



Joinder improper. 
Joinder proper. 
Review. 
Severance. 



121 



Rule 20 



MISSISSIPPI COURT RULES 



Venue. 

Construction. 

As to permissive joinder and the appli- 
cation of Miss. R. Civ. P. 20(a), the Missis- 
sippi Supreme Court recently added, in 
addition to other factors enunciated in 
past decisions, that a plaintiff must indi- 
cate the specific injury sustained. The 
Supreme Court now adds to the list that a 
plaintiff must specify the "distinct litiga- 
ble event" common to all plaintiffs; this 
information by no means guarantees that 
plaintiffs may be joined in one suit, but it 
should supply a trial court with the infor- 
mation necessary to make such a determi- 
nation. 111. Cent. R.R. Co. v. Gregory, 912 
So. 2d 829 (Miss. 2005). 

Adding parties. 

Chancellor erred in denjdng plaintiffs' 
motion for leave to amend complaint, 
where party sought to be added as plain- 
tiff alleged causes of action which arose 
out of a series of transactions including 
those which created issues between exist- 
ing parties. McDonald v. Holmes, 595 So. 
2d 434 (Miss. 1992). 

Fraudulent misjoinder. 

Plaintiffs' claims against medical defen- 
dants were fraudulently misjoined with 
those against employer defendants. Miss. 
R. Civ. P. 20: while a work-related accident 
might have had some relevance to dam- 
ages in the claims against the medical 
defendants, it was not a "linking" event 
joining the two sets of defendants (the 
medical defendants were sued for medical 
malpractice and product liability in con- 
nection with a surgery which was related 
to an accident at work, while the employer 
defendants were sued for wrongful dis- 
charge, slander, intentional infliction of 
emotional distress, and negligence in con- 
nection with the administration of a drug 
test); further, the plaintiffs failed to iden- 
tify, nor could the court find, any question 
of law or fact common to the two sets of 
defendants. Palermo v. Letourneau 
Techs., Inc., 542 F. Supp. 2d 499 (S.D. 
Miss. Mar. 26, 2008). 

After a negligence suit was removed 
from state to federal court, then remanded 
due to lack of complete diversity jurisdic- 
tion, defendant insurer's motion for recon- 



sideration of the federal district court's 
order awarding fees related to the re- 
moval and remand to plaintiff insured 
under 28 USCS § 1447(c) was rejected; 
the court held that joinder of the insurer 
was proper under Miss. R. Civ. P. 20 for 
the purpose of obtaining a declaration of 
coverage under Fed. R. Civ. P. 57, and thus 
the court did not err in holding that the 
insurer lacked an objectively reasonable 
basis to remove the case on the grounds 
that it had been fraudulently misjoined 
with an in-state defendant. Hines v. Plane 
Paint, Inc., 430 F. Supp. 2d 598 (S.D. Miss. 
2006). 

Assuming arguendo that the Fifth Cir- 
cuit would explicitly adopt the Tapscott 
rationale in an appropriate case, the court 
would only be able to accept jurisdiction 
based on the misjoinder of a party if such 
misjoinder were egregious; as the Missis- 
sippi Supreme Court had found the join- 
der of literally thousands of consumer 
plaintiffs from several different states to 
be proper under Miss. R. Civ. P. 20, the 
court could not conclude that the joinders 
were improper, much less egregiously so, 
under the liberal version of Miss. R. Civ. P. 
Rule 20 which applied at the time the 
amended complaint was filed. Walton v. 
Tower Loan, 338 F. Supp. 2d 691 (N.D. 
Miss. Sept. 28, 2004). 

Motion for remand was granted because 
the court did not find fraudulent misjoin- 
der with regard to defendants under Miss. 
R. Civ. P. 20 and the fact that 5 out of 45 
plaintiffs had filed for bankruptcy was not 
sufficient to establish federal jurisdiction 
under 28 U.S.C.S. § 1334 when state law 
claims completely predominated in the 
action. Jackson v. Truly, 307 F. Supp. 2d 
818 (N.D. Miss. 2004). 

Interpretation. 

Language requiring that joined plain- 
tiffs demonstrate the existence of a "dis- 
tinct litigable event" semantically distin- 
guishes Miss. R. Civ. P. 20(a) from the 
requirement under Fed. R. Civ. P. 20(a) 
that the claims between the different 
plaintiffs be "logically related." MS Life 
Ins. Co. V. Baker, 905 So. 2d 1179 (Miss. 
2005). 

Joinder improper. 

Trial court's dismissal of the nonresi- 
dents' asbestos injury suit without preju- 



122 



RULES OF CIVIL PROCEDURE 



Rule 20 



dice was correct where, under the apphca- 
ble case law, plaintiffs could not be joined 
under Miss. R. Civ. P. 20 unless their 
claims were connected by a distinct, liti- 
gable event and the causes of action had 
accrued outside the state. Alexander v. AC 
And S, Inc., 947 So. 2d 891 (Miss. 2007). 

Amount of evidence that would have to 
be introduced to prove all of the claims by 
the agents against the insurers in one 
trial would certainly overwhelm a jury; no 
agent had claims against every defendant, 
and the agents failed to provide sufficient 
facts to prove that their claims of fraud 
and conspiracy could withstand sever- 
ance. Miss. Farm Bureau Fed'n v. Roberts, 
927 So. 2d 739 (Miss. 2006). 

Trial court abused its discretion in al- 
lowing plaintiffs to conduct discovery as 
the plaintiffs were not properly joined 
under Miss. R. Civ. R 20, and the com- 
plaint did not put the railroad on notice as 
to the specific wrong done to each plaintiff 
by the railroad. Thus, the matter was 
remanded for plaintiffs to amend the com- 
plaint. 111. Cent. R.R. v. Adams, 922 So. 2d 
787 (Miss. 2006). 

Medical malpractice and pharmaceuti- 
cal product liability case was remanded 
for severance where the trial court abused 
its discretion in joining the four patients' 
cases because each patient was affiliated 
with only one physician and one pharma- 
cist, and it was improper to join diverse 
plaintiffs with diverse defendants in the 
same law suit. Warner-Lambert Co. v. 
Potts, 909 So. 2d 1092 (Miss. 2005). 

Where plaintiffs, numerous former and 
present employees, sued defendant, a rail- 
road company, for occupational lung dis- 
ease (all but one plaintiff residing outside 
of Tunica County, Mississippi, where the 
suit was filed, and some plaintiffs residing 
in Tennessee), primarily due to alleged 
exposure to asbestos, the railroad com- 
pany successfully argued that joinder was 
improper because their employment con- 
sisted of work in different crafts at differ- 
ent work sites during different periods of 
time, and there was no transaction or 
occurrence or "distinct litigable event" 
common to all plaintiffs. Moreover, all 
claims against out-of-state defendants 
based on causes of action that accrued out 
of state were dismissed based on forum 



non conveniens, and all other plaintiffs' 
claims had to be severed from those of the 
Tunica County resident, including claims 
of plaintiffs who alleged exposure in Tu- 
nica County; all cases that could not be 
brought individually in Tunica County 
were to be transferred to a venue in which 
each plaintiff could have originally 
brought his or her claim, as required by 
Miss. R. Civ. P 8'2(d). 111. Cent. R.R. Co. v. 
Gregory, 912 So. 2d 829 (Miss. 2005). 

Court erred in denying defendants' mo- 
tion to sever and transfer plaintiffs' per- 
sonal injury claims based on improper 
joinder because there was no single trans- 
action or occurrence connecting plaintiffs 
to asbestos exposure at a shipyard to 
justify joinder under Miss. R. Civ. P. 20(a). 
Although each plaintiff worked at a com- 
mon workplace, the shipyard, their em- 
ployment was at different dates and 
times. Crossfield Prods. Corp. v. Irby, 910 
So. 2d 498 (Miss. 2005). 

Where a department store was sued for 
racial profiling customers across the coun- 
try in store security measures, the joinder 
of claims of out-of-state customers into a 
single mass action in Mississippi exceeded 
the scope of permissible joinder under 
Miss. R. Civ. P. 20(a). Cases without an 
independent basis for venue in Hinds 
County, Mississippi, were severed. Dil- 
lard's, Inc. V. Scott, 908 So. 2d 93 (Miss. 
2005). 

Same transaction or occurrence require- 
ment of Miss. R. Civ. P. 20(a) was satisfied 
as any potential claims the driver had 
against either the employee or insurer 
arose out of one distinct event, the acci- 
dent of March 14, 2001; however, the 
driver improperly joined the insurer as a 
defendant where the driver could not rely 
on Miss. R. Civ. P. 57 as the basis for 
bringing suit against the insurer where 
Rule 57 only allowed the driver to seek a 
declaratory judgment against an insurer 
when coverage was in doubt, and coverage 
was not in doubt; there would therefore be 
no common question of law or fact liti- 
gated between all parties, making joinder 
of the insurer and employee as defendants 
improper. Mercer v. Moody, 918 So. 2d 664 
(Miss. 2005). 

Trial court improperly permitted an as- 
bestos mass tort case with 76 plaintiffs 



123 



Rule 20 



MISSISSIPPI COURT RULES 



and 136 defendants to proceed without 
severance when only 6 plaintiffs had ties 
to Mississippi, only 2 of those were ex- 
posed in the trial court's county, and plain- 
tiffs were exposed at 250 different work 
locations in 20 different states. Arachem 
Prods. V. Rogers, 912 So. 2d 853 (Miss. 
2005). 

Suits of six asbestos claims plaintiffs 
and seven defendants were improperly 
joined as the plaintiff's actions did not 
arise out of the same transaction or occur- 
rence. Although the plaintiffs all alleged 
exposure to asbestos, the plaintiffs 
worked in different occupations, for differ- 
ent employers, at different times; further- 
more, some of the plaintiffs used respira- 
tory protection equipment while others 
did not; also evident of improper joinder 
was the identical amounts of damages 
awarded to each plaintiff, in that each 
plaintiff had unique medical histories, 
work histories, differing exposures and 
differing diagnoses which were presented 
to the jury. 3M Co. v. Johnson, 895 So. 2d 
151 (Miss. 2005). 

Medical malpractice and pharmaceuti- 
cal product liability case was remanded 
for severance where the trial court abused 
its discretion in joining the four patients' 
cases because each patient was affiliated 
with only one physician and one pharma- 
cist, and it was improper to join diverse 
plaintiffs with diverse defendants in the 
same law suit. Warner-Lambert Co. v. 
Potts, 909 So. 2d 1092 (Miss. 2005). 

Joinder was improper under Miss. R. 
Civ. P. 20(a) in borrowers' suit against 
lenders based on alleged "insurance pack- 
ing," "loan flipping," and other deceptive 
business practices because there was no 
common question of misrepresentation 
and the borrowers failed to meet the Rule 
20(a) same transaction and occurrence 
test as the loans were taken out on differ- 
ent days from different branch offices us- 
ing different loan officers and containing 
different interest rates. CitiFinancial, Inc. 
V. Moody, 910 So. 2d 553 (Miss. 2005). 

Court erred in den3ring defendants' mo- 
tion to sever and transfer plaintiffs' per- 
sonal injury claims based on improper 
joinder because there was no single trans- 
action or occurrence connecting plaintiffs 
to asbestos exposure at a shipyard to 



justify joinder under Miss. R. Civ. P. 20(a). 
Although each plaintiff worked at a com- 
mon workplace, the shipyard, their em- 
ployment was at different dates and 
times. Crossfield Prods. Corp. v. Irby, 910 
So. 2d 498 (Miss. 2005). 

Because the owners' claims against the 
insurer and agents did not arise from the 
same transaction or occurrence or series 
of transactions or occurrences, joinder was 
not proper under Miss. R. Civ. P. 20(a); the 
owners were located in seven different 
Mississippi counties and three other 
states, dealt with different agents or em- 
ployees, had different customer bases, and 
the damages allegedly incurred by each 
owner necessarily arose in a different time 
period. State Farm Mut. Auto. Ins. Co. v. 
Murriel, 904 So. 2d 112 (Miss. 2004). 

Where three plaintiffs residing in differ- 
ent counties alleged they were harmed by 
a defective drug that had been prescribed 
to them, they could not be permissively 
joined in the same suit because their 
merely taking the same prescription drug 
did not constitute the "same transaction 
or occurrence" required by the permissive 
joinder rule, Miss. R. Civ. P. 20. Purdue 
Pharma, L.P v. Estate of Heffner, 904 So. 
2d 100 (Miss. 2004). 

Federal district court's determination 
that a doctor had not been fraudulently 
joined to defeat diversity jurisdiction was 
not a determination that he was properly 
joined under Miss. R. Civ. P. 20. Purdue 
Pharma, L.P. v. Estate of Heffner, 904 So. 
2d 100 (Miss. 2004). 

Just because plaintiffs may all be joined 
in an action does not necessarily mean 
that all named defendants are appropri- 
ately joined; where users of a prescription 
drug filed a state court tort action against 
the drug's makers and an in-state doctor, 
as to those users who were not treated by 
the doctor, the action was properly re- 
moved to the court because the doctor was 
egregiously misjoined. Jones v. Nastech 
Pharm., 319 F. Supp. 2d 720 (S.D. Miss. 
2004). 

In a products liability case arising from 
use of a prescription drug, a court improp- 
erly joined the suits often plaintiffs where 
their actions did not arise out of the same 
transaction or occurrence as plaintiffs 
were prescribed the drug by different phy- 



124 



RULES OF CIVIL PROCEDURE 



Rule 20 



sicians, in different amounts, for different 
ailments, they presented 10 unique med- 
ical histories, and along with the histories 
and injuries, plaintiffs also claimed signif- 
icantly different medical expenses. Al- 
though there were significant differences 
in medical expenses, the jury took only 
two hours after a four-week trial to award 
each plaintiff $ 10 million. Janssen 
Pharmaceutica, Inc. v. Bailey, 878 So. 2d 
31 (Miss. 2004). 

Joinder proper. 

Miss. R. Civ. P. 20 is clearly considered 
to apply to asbestos claims. Amchem 
Prods. V. Rogers, 912 So. 2d 853 (Miss. 
2005). 

Where there was at least one viable 
state-law claim with a possibility of recov- 
ery against the resident retail sellers with 
respect to the strict liability claim under 
Miss. Code Ann. § 11-1-63, joinder of the 
diabetics' claims was proper under Miss. 
R. Civ. P. 20; therefore, the the case was 
erroneously removed pursuant to 28 
U.S.C.S. § 1332 and had to be remanded 
to the state court. Polk v. Lifescan, Inc., — 
F. Supp. 2d — , 2003 U.S. Dist. LEXIS 
25762 (N.D. Miss. Sept. 19, 2003). 

Where users of a prescription drug filed 
a state court tort action against the drug's 
makers and an in-state doctor, as to the 
only user who was treated by the doctor, 
the action was remanded because the 
court held that the physician was egre- 
giously misjoined because the remaining 
plaintiffs did not allege a claim against 
both the physician and the pharmaceuti- 
cal companies arising out of the same 
transaction or occurrence. Jones v. 
Nastech Pharm., 319 F. Supp. 2d 720 (S.D. 
Miss. 2004). 

In a mass-joined asbestos action 
brought by plaintiff consumers against 
defendants, manufacturers and retailers, 
seeking recovery for injuries resulting 
from exposure to asbestos-containing 
products, the consumers were entitled to 
have the action remanded to state court 
because no egregious procedural misjoin- 
der existed in the action, including the 
joinder of so-called "friction defendants" 
(manufacturers and sellers of car parts 
sold to consumers) and "non-friction de- 
fendants" (manufacturers and sellers of 
industrial insulation products). Thus, de- 



fendants failed to show that the local 
retailers were fraudulently joined for the 
purpose of defeating removal jurisdiction. 
Duflfin V. Honeywell Int'l, Inc., 312 F 
Supp. 2d 869 (N.D. Miss. Apr. 5, 2004). 

Pursuant to 28 U.S.C.S. §§ 1332(a) and 
1441(a), the individuals' motion to remand 
their action against the automobile manu- 
facturers and sellers seeking to recover for 
personal injuries and property damages 
arising out of automobile accidents was 
granted where, under the liberal joinder 
provisions of Miss. R. Civ. P. 20 and the 
case law interpreting it, the individuals' 
allegations that their injuries arose out of 
the installation of defective engine sys- 
tems in their automobiles were suffi- 
ciently related to withstand the manufac- 
turers' and sellers' fraudulent misjoinder 
arguments. Burrell v. Ford Motor Co., 304 
F. Supp. 2d 883 (S.D. Miss. 2004). 

Insurance agents' motion to remand 
their several tort claims against an insur- 
ance company and a supervisor was 
granted where the agents had stated at 
least one claim against the non-diverse 
supervisor, tortious interference with con- 
tract, by sufficiently alleging (1) the exis- 
tence of an agency contract with the com- 
pany, (2) that the supervisor had 
unjustifiably interfered with that con- 
tract, and (3) that the agents had not 
fraudulently misjoined their claims under 
Miss. R. Civ. P. 20, since each agent was 
under a separate agency contract with the 
company, so that the facts and law sup- 
porting the agents' claims had numerous 
common factors, and the evidence re- 
quired to prove them was not so volumi- 
nous that jury confusion would result. 
Ross V. Life Investors Ins. Co. of Am., 309 
F. Supp. 2d 842 (S.D. Miss. 2004). 

Where painters and sanders sued di- 
verse manufacturers and non-diverse sell- 
ers regarding lead paint exposure and 
defendants removed the case to federal 
court. Miss. R. Civ. P. 20, rather than Fed. 
R. Civ. P. 20, applied to the fraudulent 
misjoinder analysis because application of 
Fed. R. Civ. P. 20 in a fraudulent misjoin- 
der analysis violates the Fed. R. Civ. P. 82 
prohibition on utilizing the Federal Rules 
of Civil Procedure to expand the jurisdic- 
tion of a federal court; the court found that 
neither the plaintiffs nor the plaintiffs' 



125 



Rule 20 



MISSISSIPPI COURT RULES 



claims were fraudulently misjoined. 
Sweeney v. Sherwin Williams Co., 304 F. 
Supp. 2d 868 (S.D. Miss. 2004). 

In analgesic users' suit against manu- 
facturers, pharmacies, and a doctor aris- 
ing out of the use of the analgesic 
Oxycontin, remand to state court was ap- 
propriate because the doctor was not 
fraudulently misjoined. Jamison v. 
Purdue Pharma Co., 251 F. Supp. 2d 1315 
(S.D. Miss. 2003). 

Almost 1,400 plaintiffs were properly 
joined in five consolidated actions alleging 
that they were force placed into collateral 
protection insurance policies at unfavor- 
able rates since (1) all of the plaintiffs' 
claims arose out of the same pattern of 
conduct, the same type of insurance, and 
involved interpretation of the same mas- 
ter policy, (2) the plaintiffs asserted that 
the cases contained at least 22 common 
issues of fact and law that applied to each 
and every plaintiff, and (3) the defendants 
asserted the same defense to all of the 
claims. American Bankers Ins. Co. of Fla. 
& Am. Bankers Ins. Group v. Alexander, 
818 So. 2d 1073 (Miss. 2001), cert, denied, 
534 U.S. 944, 122 S. Ct. 324, 151 L. Ed. 2d 
242 (2001). 

Review. 

Circuit court erred in stating that Miss. 
R. Civ. P. 20 required only that cause of 
actions had to arise out of similar trans- 
actions or occurrences, that could be sat- 
isfied by common questions of law or fact. 
Rule 20(a) imposes two specific requisites 
to the joinder of parties: (1) a right to relief 
must be asserted by or against each plain- 
tiff or defendant relating to or arising out 
of the same transaction or occurrence; 
and, (2) some question of law or fact 
common to all the parties will arise in the 
action; both of these requirements must 
be satisfied. 111. Cent. R.R. Co. v. Gregory, 
912 So. 2d 829 (Miss. 2005). 

Where forty-five plaintiffs made general 
allegations claiming that an insurance 
company illegally required credit insur- 
ance and fraudulently inflated the cost of 
premiums, the plaintiffs failed to meet the 
prerequisite for joinder that the claims be 
based upon the same transaction or occur- 
rence. The trial court abused its discretion 
in ruling on the insurance company's mo- 
tion to sever with scant proof offered for. 



or in opposition to, joinder. MS Life Ins. 
Co. V. Baker, 905 So. 2d 1179 (Miss. 2005). 

Although allowing joinder would have 
been the better choice, trial court's denial 
of joinder was not an abuse of discretion, 
considering uncertain state of the law. 
Bobby Kitchens, Inc. v. Mississippi Ins. 
Guar. Ass'n, 560 So. 2d 129 (Miss. 1989). 

Defendants' motion for reconsideration 
of the district court's refusal to grant their 
motion to remand on the basis of fraudu- 
lent joinder to prevent removal was de- 
nied where the amendments of Miss. R. 
Civ. P. 20 did not apply retroactively to 
require reconsideration of defendants' 
contention that plaintiffs were miisjoined. 
Duffin V. Honeywell Int'l, Inc., — F. Supp. 
2d — 2004 U.S. Dist. LEXIS 12856 (N.D. 
Miss. Apr. 26, 2004). 

Severance. 

Following an automobile accident in 
which both drivers had the same liability 
insurer, appellee driver filed a claim for 
property damage and medical payments 
under her policy with the insurer and a 
third-party claim for bodily injury and 
medical expenses under appellant's liabil- 
ity policy, and appellant driver filed 
breach of contract and bad faith claims 
against the insurer; circuit court abused 
its discretion in den3dng the motion to 
sever, because neither prong of Miss. R. 
Civ. P. 20(a) was met for permissive join- 
der. Hegwood V. Williamson, 949 So. 2d 
728 (Miss. 2007). 

In patient's action over prescription 
drugs manufactured and sold by drug 
company to treat obesity, the trial of the 
seven patient's claims against the four 
doctors and the drug company would have 
inevitably resulted in the same confusing 
presentation of evidence which the Missis- 
sippi Supreme Court sought to avoid in 
reversing the trial court in Janssen 
Pharmaceutica, Inc. v. Armond, 866 So. 2d 
1092 (Miss. 2004). The supreme court 
therefore reversed the trial court's denial 
of the drug company's motion to sever or 
transfer venue, and remand with instruc- 
tions that the trial court sever and trans- 
fer the cases to the appropriate venue. 
Wyeth-Ayerst Labs. v. Caldwell, 905 So. 
2d 1205 (Miss. 2005). 

Severance was ordered as to each of the 
residents where they failed in their obli- 



126 



RULES OF CIVIL PROCEDURE 



Rule 20 



gation to assert sufficient information to 
justify joinder; the trial court was directed 
to dismiss the complaint of each resident 
who failed, within 45 days of the order, to 
provide the manufacturers and trial court 
with sufficient information, including the 
name of the manufacturer or manufactur- 
ers against whom each resident made a 
claim, and the time period and location of 
exposure. Harold's Auto Parts, Inc. v. 
Mangialardi, 889 So. 2d 493 (Miss. 2004). 

In patient's action over prescription 
drugs manufactured and sold by drug 
company to treat obesity, the trial of the 
seven patient's claims against the four 
doctors and the drug company would have 
inevitably resulted in the same confusing 
presentation of evidence which the Missis- 
sippi Supreme Court sought to avoid in 
reversing the trial court in Janssen 
Pharmaceutica, Inc. v. Armond, 866 So. 2d 
1092 (Miss. 2004). The supreme court 
therefore reversed the trial court's denial 
of the drug company's motion to sever or 
transfer venue, and remand with instruc- 
tions that the trial court sever and trans- 
fer the cases to the appropriate venue. 
Wyeth-Ayerst Labs. v. Caldwell, 905 So. 
2d 1205 (Miss. 2005). 

Issues raised in the pharmaceutical 
companies' appeal dealt with the same 
issues raised and discussed in an earlier 
case, where the appellate court deter- 
mined that joinder was improper and that 
the trial court abused its discretion in 
denying the motion to sever and transfer; 
because the patients in the case did not 
share a single, distinct litigable event, 
they could not be joined, and the pharma- 
ceutical companies' motion should have 
been granted and the improperly joined 
patients should have been severed for 
separate trials. Janssen Pharmaceutica, 
Inc. V. Jackson, 883 So. 2d 91 (Miss. 2004). 

Pharmaceutical companies argued that 
the plaintiffs took the prescription drug at 
different times, under different labels and 
warnings and had different pre-existing 
conditions. Because of those differences, 
the companies sought to have plaintiffs' 
joinder in Jefferson County severed, alleg- 
ing that the inquiries into alleged defec- 
tive design, failure to warn, breach of 
warranty and misrepresentation would be 
wholly distinct in each plaintiff's case; the 



Mississippi Supreme Court concluded a 
jury could well be overwhelmed by the 30 
separate fact patterns that were offered to 
prove medical malpractice, affirmed the 
trial court's decision to sever plaintiffs' 
claims, and affirmed the trial court's deci- 
sion allowing for transfer of the claims of 
those plaintiffs without jurisdiction in Jef- 
ferson County to the court or courts of 
plaintiffs' counsel's choosing. Culbert v. 
Johnson & Johnson, 883 So. 2d 550 (Miss. 
2004). 

Court erred in denying pharmaceutical 
company's motion to sever plaintiffs' 
claims against physicians and pharma- 
cists in an action for injuries sustained 
after the use of a drug; jury might have 
been overwhelmed with 37 fact patterns 
offered to prove malpractice. Janssen 
Pharmaceutica, Inc. v. Keys, 879 So. 2d 
446 (Miss. 2004). 

For the purposes of Miss. R. Civ. P. 20, 
six medical malpractice plaintiffs were 
misjoined with the remaining 19 plaintiffs 
where, inter alia, each of the medical 
malpractice plaintiffs would have differ- 
ent facts and witnesses to support their 
claims of medical malpractice at trial, and 
would also have different medical histo- 
ries with no relationship to those of the 
other plaintiffs. Thus, where each doctor- 
patient pair presented a different set of 
factual issues requiring consideration, the 
court found that the claims of the medical 
malpractice plaintiffs should be severed 
from the claims of the other plaintiffs and 
should be remanded to the state court 
from which they had been removed. Pitt- 
man V. Purdue Pharma Co., — F. Supp. 2d 
— , 2004 U.S. Dist. LEXIS 9840 (S.D. 
Miss. Mar. 12, 2004). 

Motion to remand was granted with 
regard to four plaintiffs because these 
plaintiffs' claims were fraudulently 
misjoined under both Fed. R. Civ. P. 20 
and Miss. R. Civ. P. 20 with the claims of 
their co-plaintiffs as their claims did not 
arise from the same transaction or occur- 
rence as to the purchase of insurance 
policies from defendants. Therefore, the 
court did not allow the four plaintiffs to 
deprive the diverse defendants of their 
right of removal based on diversity juris- 
diction. Reed v. Am. Med. Sec. Group, Inc., 
324 F. Supp. 2d 798 (S.D. Miss. 2004). 



127 



Rule 21 



MISSISSIPPI COURT RULES 



Joinder of consumers' complaints 
against defendants was improper under 
Miss. R. Civ. P. 20 and Smith County was 
improper venue; the case was remanded 
for severance and for a transfer of the 
severed cases to those jurisdictions in 
which each consumer could have brought 
his or her claims without reliance on an- 
other of the improperly joined plaintiffs. 
Janssen Pharmaceutica, Inc. v. Grant, 873 
So. 2d 100 (Miss. 2004). 

Court erred in denying pharmaceutical 
companies' and doctors' motion to sever 
and transfer venue for separate trials in 
an action by 56 plaintiffs for injuries 
caused by a prescription medication; 
plaintiffs had different medical histories, 
alleged different injuries at different 
times, ingested different amounts of the 
medication over different periods of time, 
received advice from different doctors, 
who, in turn, received different informa- 
tion about the risks associated with the 
medication via six different warning la- 
bels utilized during the time covered by 
the lawsuit, and who each had his or her 
own reasons to prescribe the medication. 
Mass joinder of the claims would make it 



impossible for the jury to limit the evi- 
dence to the appropriate plaintiff and doc- 
tor relationship. Janssen Pharmaceutica, 
Inc. V Armond, 866 So. 2d 1092 (Miss. 
2004). 

The court properly severed a claim 
against a teacher arising from the pad- 
dling of a child as punishment from a 
claim against the school superintendent 
for falsely reporting that the child was 
abused by her father, since the claims 
were based on different events and involv- 
ing different individuals. Burnham v. Ste- 
vens, 734 So. 2d 256 (Miss. Ct. App. 1999). 

Venue. 

In a suit where an administratrix sued 
a railroad for her husband's death, alleg- 
ing injuries and death due to exposure to 
asbestos, although the decedent resided 
and worked for the railroad in Tennessee, 
a suit with others against it in Mississippi 
was proper because the administratrix 
was properly joined under Miss. R. Civ. P. 
20, and thus, under Miss. R. Civ. P. 82(c), 
venue was proper for all plaintiffs where it 
was proper for one. 111. Cent. R.R. v. Tra- 
vis, 808 So. 2d 928 (Miss. 2002). 



RESEARCH REFERENCES 



Law Reviews — Foreword: Love It or 
Leave It; An Examination of the Need for 
and Structure of a Class Action Rule in 
Mississippi, 24 Miss. C. L. Rev. 145, 
Spring, 2005. 

Litigation in Mississippi Today: A Sym- 
posium: Life in Lawsuit Central: An Over- 
view of the Unique Aspects of Mississip- 
pi's Civil Justice System, 71 Miss. L.J. 
359, Winter, 2002. 

Litigation in Mississippi Today: A Sym- 
posium: Class Actions & Joinder in Mis- 
sissippi, 71 Miss. L.J. 447, Winter, 2002. 



Now Open for Business: The Transfor- 
mation of Mississippi's Legal Climate, 24 
Miss. C. L. Rev. 393, Spring, 2005. 

Tort Reform by the Mississippi Supreme 
Court, 24 Miss. C. L. Rev 427, Spring, 
2005. 

State Court Class Actions in Missis- 
sippi: Why Adopt Them Now?, 24 Miss. C. 
L. Rev 437, Spring, 2005. 

Taming an Elephant: A Closer Look at 
Mass Tort Screening and the Impact of 
Mississippi Tort Reforms, 26 Miss. C. L. 
Rev. 253, 2006/2007. 



Rule 21. Misjoinder and nonjoinder of parties. 

Misjoinder of parties is not ground for dismissal of an action. Parties may be 
dropped or added by order of the court on motion of any party or of its own 
initiative at any stage of the action and on such terms as are just. Any claim 
against a party may be severed and proceeded with separately. 



128 



RULES OF CIVIL PROCEDURE 



Rule 21 



COMMENT 



The purpose of Rule 21 is to avoid 
multiple litigation and to promote liberal 
joinder of parties. 

Rule 21 applies, for example, when: (1) 
the joined parties do not meet the requi- 
sites of Rule 20; (2) no relief has been 
demanded from one or more of the parties 
joined as defendants. See Wherry v. Lati- 
mer, 103 Miss. 524, 529, 60 So. 563, 564 
(1912) (no error when no objection was 
made); (3) no claim for relief is stated 
against one or more of the defendants; (4) 
one of several plaintiffs does not seek any 
relief against the defendant and is with- 
out any real interest in the controversy, 
See Jackson v. Dunbar, 68 Miss. 288, 290, 
10 So. 38, 40 (1890) (one of several plain- 
tiffs having no right of action was improp- 
erly joined but no objection having been 
made there was no error where there was 
no recovery in favor of the one misjoined); 
Miss. Code Ann. § 11-5-65 (1972) (allows 
for chancery decree upon the merits dis- 
regarding objection for misjoinder at hear- 
ing); Miss. Code Ann. §§ 11-7-21, 11-7-23 
(1972) (written objection to misjoinder to 
be made prior to trial, plaintiff to have 
leave to amend). 

Rules 17 and 19 should be used as 
reference points for what is meant by 



nonjoinder in Rule 21. Thus, Rule 21 sim- 
ply describes the procedural consequences 
of failing to join a party as required in 
Rules 17 and 19, Miss. Code Ann. §§ 11- 
7-21, 11-7-23 (1972); Williams u. General 
Insurers, Inc., 193 Miss. 276, 290, 7 So.2d 
876, 878 (1942>. (generally, equity court 
will not proceed where necessary party 
has been omitted), and makes it clear that 
the defect can be corrected. Accord, 
Soloman v. Miss. Coast Hotels, Inc., 263 
So.2d 526, 527 (Miss. 1972) (complainant 
is given leave to amend to add necessary 
party); Wiener v. Pierce, 253 Miss. 728, 
732-33, 178 So.2d 869, 871 (1965) (on 
failure to amend, bill is dismissed, with- 
out prejudice); Gates v. Union Naval 
Stores Co., 92 Miss. 227, 230, 45 So. 979, 
980 (1908) (supreme court raised issue of 
nonjoinder and declined to proceed until 
the necessary parties were joined). See 
also, V. Griffith, Mississippi Chancery 
Practice, §§ 147-149 (2d ed. 1950); 3A 
Moore's Federal Practice 111 21.01-.05 
(1974); 7 Wright & Miller, Federal Prac- 
tice and Procedure, Civil §§ 1681-1689 
(1972). M.R.C.P 21 is identical to FRCP 
21. 



JUDICIAL DECISIONS 



Additional parties. 

Severance. 

Severance; forum after. 

Additional parties. 

Addition of two parties in a revised 
petition for incorporation did not render 
the petition jurisdictionally fatal, pursu- 
ant to Miss. Code Ann. § 21-1-15, because 
Miss. R. Civ. P. 21 applied to petitions of 
incorporation where the parties had re- 
ceived timely service of process and nei- 
ther party objected to the proposed incor- 
poration. City of Jackson v. Byram 
Incorporators, 16 So. 3d 662 (Miss. 2009). 

Severance. 

Trial court's order dismissing defen- 
dants whose names had been added in 
plaintiff's amended complaint without the 
court's leave was proper because the new 



names were not substituted for fictitious 
parties, but rather were those of new 
defendants whose addition required court 
approval under Miss. R. Civ. P. 21. Veal v. 
J. P. Morgan Trust Co., N.A., 955 So. 2d 
843 (Miss. 2007). 

Where the plaintiffs are misjoined and 
severance is required, the rule is for the 
trial court to: (1) allow a plaintiff whose 
case is properly before the court (if any), 
and all properly joined plaintiffs, to pro- 
ceed in the filed action; (2) allow misjoined 
plaintiffs who are properly before the trial 
court to proceed with separate actions in 
the forum court; and (3) sever and dismiss 
all misjoined plaintiffs who lack proper 
venue in the forum court, allowing each 
severed plaintiff to file a new complaint in 
an appropriate venue selected by that 
plaintiff. Canadian National/Illinois Cent. 
R.R. V. Smith, 926 So. 2d 839 (Miss. 2006). 



129 



Rule 22 



MISSISSIPPI COURT RULES 



Trial court in medical malpractice ac- 
tion abused its discretion in severing 
plaintiff's claims against a second physi- 
cian, where those claims involved the 
same nucleus of common facts and arose 
from the same transaction or occurrence. 
Kiddy v. Lipscomb, 628 So. 2d 1355 (Miss. 
1993). 

Severance; forum after. 

Decision to grant summary judgment to 
companies in a product liability action 
was reversed on appeal because the case 
should have never been transferred to a 
second county in Mississippi due to mis- 
joinder; since nothing connected the 
claims to Mississippi, they should have 
been dismissed instead of transferred. 



Creel v. Bridgestone/Firestone N. Am. 
Tire, LLC, 950 So. 2d 1024 (Miss. 2007). 

Where the plaintiffs are misjoined and 
severance is required, the rule is for the 
trial court to: (1) allow a plaintiff whose 
case is properly before the court (if any), 
and all properly joined plaintiffs, to pro- 
ceed in the filed action; (2) allow misjoined 
plaintiffs who are properly before the trial 
court to proceed with separate actions in 
the forum court; and (3) sever and dismiss 
all misjoined plaintiffs who lack proper 
venue in the forum court, allowing each 
severed plaintiff to file a new complaint in 
an appropriate venue selected by that 
plaintiff. Canadian National/Illinois Cent. 
R.R. V. Smith, 926 So. 2d 839 (Miss. 2006). 



Rule 22. Interpleader. 

(a) Plaintiff or defendant. Persons having claims against the plaintiff may 
be joined as defendants and required to interplead when their claims are such 
that the plaintiff is or may be exposed to double or multiple liability. It is not 
ground for objection to the joinder that the claims of the several claimants or 
the titles on v^hich their claims depend do not have a common origin or are not 
identical but are adverse to and independent of one another, or that the 
plaintiff avers that he is not liable in whole or in part to any or all of the 
claimants. A defendant exposed to similar liability may obtain such inter- 
pleader by way of cross-claim or counter-claim. The provisions of this rule 
supplement and do not in any way limit the joinder of parties permitted in Rule 
20. 

(b) Release from liability; deposit or delivery. Any party seeking inter- 
pleader, as provided in subdivision (a) of this rule, may deposit with the court 
the amount claimed, or deliver to the court or as otherwise directed by the 
court, the property claimed, and the court may thereupon order such party 
discharged from liability as to such claims and the action shall continue as 
between the claimants of such money or property. 

COMMENT 



The purpose of Rule 22, interpleader, is 
to permit a stakeholder who is uncertain if 
and to whom he is liable for money or 
property held by him to join those who are 
or who might assert claims against him 
and to thereby obtain a judicial determi- 
nation for the proper disbursement of the 
money or property. Interpleader is not 
new to Mississippi practice. See, e. g. 
Yarborough v. Thompson, 11 Miss. 291 
(1844); Anderson v. Wilkinson, 18 Miss. 



601 (1848); Browning u. Watkins, 18 Miss. 
482 (1848). It is intended that Rule 22 be 
applied liberally. 

The protection afforded by interpleader 
takes several forms. Most significantly, it 
prevents the stakeholder from being obli- 
gated to determine at his peril which 
claimant has the better claim and, when 
the stakeholder himself has no interest in 
the fund, forces the claimants to contest 
what essentially is a controversy between 



130 



RULES OF CIVIL PROCEDURE 



Rule 22 



them without embroihng the stakeholder 
in the htigation over the merits of the 
respective claims. Even if the stakeholder 
denies liability, either in whole or in part 
to one or more of the claimants, inter- 
pleader still protects him from the vexa- 
tion of multiple suits and the possibility of 
multiple liability that could result from 
adverse determinations in different 
courts. Thus, interpleader can be em- 
ployed to reach an early and effective 
determination of disputed questions with 
a consequent saving of trouble and ex- 
pense for the parties. As is true of the 
other liberal joinder provisions in these 
rules, interpleader also benefits the judi- 
cial system by condensing numerous po- 
tential individual actions into a single 
comprehensive unit, with a resulting sav- 
ings in court time and energy. 

Interpleader also can be used to protect 
the claimants by bringing them together 
in one action and reaching an equitable 
division of a limited fund. This situation 
frequently arises when the insurer of an 
alleged tortfeasor is faced with claims 
aggregating more than its liability under 
the policy. Were an insurance company 
required to await reduction of claims to 
judgment, the first claimant to obtain 
such a judgment or to negotiate a settle- 
ment might appropriate all or a dispropor- 
tionate share of the fund before his fellow 
claimants were able to establish their 
claims. The difficulties such a race to 
judgment poses for the insurer, and the 
unfairness which may result to some 
claimants, are among the principal evils 
the interpleader device is intended to rem- 
edy. See, e. g.. State Farm Fire & Cas. Co. 
V. Tashire, 386 U.S. 523 (87 S. Ct. 1199, 18 
L.Ed.2d 270) (1967). 

An additional advantage of interpleader 
to the claimant is that it normally in- 
volves a deposit of the disputed fund or 
property in court, thereby eliminating 
much of the delay and expense that often 
attends the enforcement of a money judg- 
ment. 

Historically, equitable interpleader was 
characterized by four requirements: (1) 
the same thing, debt, or duty must be 
claimed by both or all the parties against 
whom the relief is demanded; (2) all their 
adverse titles or claims must be depen- 



dent on or be derived from a common 
source; (3) the person asking the relief — 
the plaintiff — must not have or claim any 
interest in the subject matter; (4) he must 
have incurred no independent liability to 
either of the claimants; that is, he must 
stand perfectly indifferent between them, 
in the position of a stakeholder. See V. 
Griffith, Mississ-ippi Chancery Practice, 
§§ 420-426 (2d ed. 1950). It is intended 
that Rule 22 be applied liberally with the 
view toward increasing the availability of 
interpleader in eliminating historical 
technical restraints on the device that are 
not founded on adequate policy consider- 
ation. As a result, the four historic limita- 
tions on interpleader should be of no great 
significance. 

The primary test for determining the 
propriety of interpleading the adverse 
claimants and discharging the stake- 
holder is whether the stakeholder legiti- 
mately fears multiple vexation directed 
against a single fund. 

Ordinarily, interpleader is conducted in 
two "stages." In the first, the court hears 
evidence to determine whether the plain- 
tiff is entitled to interplead the defen- 
dants. In the second stage, a determina- 
tion is made on the merits of the adverse 
claims and, if appropriate, on the rights of 
an interested stakeholder. 

After the stakeholder has paid the dis- 
puted fund into court, or given bond there- 
for, and the claimants have had notice and 
an opportunity to be heard, the court 
determines whether the stakeholder is 
entitled to interpleader relief. If so, the 
court will enter an order requiring the 
claimants to interplead and, if the stake- 
holder is disinterested, discharging the 
stakeholder from the proceeding and from 
further liability with regard to the inter- 
pleader fund. The court may also perma- 
nently enjoin the claimants from further 
harassing the stakeholder with claims or 
judicial proceedings. This first stage may 
be concluded upon motion by either the 
stakeholder or one of the claimants for 
summary judgment or judgment on the 
pleadings, just as in any other action. In 
any event, since the determination of the 
propriety of interpleader turns upon an 
examination of compliance with the pre- 
requisites of the rule, issues raised at the 



131 



Rule 23 



MISSISSIPPI COURT RULES 



first stage are clearly for the court to 
determine. 

Generally, the claimants will have as- 
serted their claims to the interpleader 
fund in their answer to the stakeholder's 
complaint. If an order of interpleader is 
entered, each claimant must then tra- 
verse the claims of the other claimants, 
thus joining issue. Alternatively, if the 
issues are already clearly defined in the 
claimants' initial pleadings, further plead- 
ings may be unnecessary. 

After issue has been joined between the 
claimants, or among the claimants and 
the interested stakeholder, the court will 
proceed as in any other civil case. Sum- 
mary judgment may be granted in favor of 
one of the claimants against any other, 
even before the former serves an answer 
to the latter's pleading, a procedure gen- 
erally appropriate under Rule 56(b). In 
most cases, however, the issues at the 
second stage will be determined by a trial, 
and the manner of trial will necessarily 
depend upon the state of the pleadings at 
that time; the court is to decide, "by such 
method as Seems most suited to the par- 
ticular case, " which claimants are to pre- 
vail and to what extent. 



There is, however, no inflexible rule 
that the proceeding must be divided into 
two stages. The entire action may be dis- 
posed of at one time in cases where, for 
example, the stakeholder has not moved 
to be discharged or has remained in the 
action by reason of an interest therein. 
There may even be a third stage, in the 
event that the second stage determination 
leaves unresolved some further dispute, 
either between the stakeholder and the 
prevailing claimant or among the prevail- 
ing claimants. 

Trial during stages later than the first is 
also appropriate for counter-claims raised 
by the claimants, such as those alleging 
an independent liability, and for cross- 
claims between claimants which are held 
appropriate for resolution in the course of 
the interpleader proceedings. See 3A 
Moore's Federal Practice f% 22.01-. 16; 
(2d. ed. 1992); 7 Wright, Miller Kane, 
Federal Practice and Procedure Civil 
§§ 1701 et seq. (1986); Miss Code Ann. 
§§ 11-35-41, -43 (statutory interpleader 
by garnishee; 75-7-603 (statutory inter- 
pleader by bailee) (1972). 

[Amended April 18, 1995.] 



JUDICIAL DECISIONS 



In general. 
Applicability. 

In general. 

A Rule 22 interpleader action provides 
only the procedural vehicle to assert 
claims to the specific funds; however, the 
rule by itself cannot be the basis for a 
pro-rata distribution. Chic Creations of 
Bonita Lakes Mall v. Doleac Elec. Co., 791 
So. 2d 254 (Miss. Ct. App. 2000). 

Applicability. 

Where a plumber had been named as an 
interpleader defendant, the plumber was 
not required to have sought statutory 
remedies for the outstanding balance on 
its contract before it could recover funds 
that had been interpled. Noble House, Inc. 
V. W & W Plumbing & Heating, Inc., 881 
So. 2d 377 (Miss. Ct. App. 2004). 

Interpleader action was available to law 
firm to facilitate payment of funds in its 

Rule 23. Class actions. [Omitted]. 



possession into the registry of the court 
when several attorneys made claims to 
the funds as attorney fees arising from 
litigation. Scruggs, Millette, Bozeman & 
Dent, P.A. v. Merkel & Cocke, P.A, 804 So. 
2d 1000 (Miss. 2001). 

Interpleader was appropriate where a 
contract between a shopping center owner 
and a retail store in the shopping center 
provided that the owner would pay a cer- 
tain sum to the store for the construction 
of the interior of the store and the owner 
knew that subcontractors were not paid 
by the general contractor for their work on 
the store; the owner had a reasonable 
concern that it could be subjected to mul- 
tiple litigation and the validity of the 
various potential claims was not for the 
owner to determine. Chic Creations of 
Bonita Lakes Mall v. Doleac Elec. Co., 791 
So. 2d 254 (Miss. Ct. App. 2000). 



132 



RULES OF CIVIL PROCEDURE 



Rule 24 



Rule 23.1. Derivative actions by shareholders. [Omitted]. 
Rule 23.2. Actions relating to unincorporated associations. [Omitted]. 

COMMENT 



Class action practice is not being intro- 
duced into Mississippi trial courts at this 
time. 

Few procedural devices have been the 
subject of more widespread criticism and 
more sustained attack — and equally spir- 
ited defense — than practice under Fed- 
eral Rule 23 and its state counterparts. 
The dissatisfaction focuses primarily on 
Rule 23(b)(3), which permits suits on the 
part of persons whose only connection is 
that one or more common issues charac- 
terize their position in relation to an ad- 
verse party. 

In 1976 the American Bar Association, 
the Conference of Chief Justices, and the 
Judicial Conference of the United States 
jointly sponsored the National Conference 
on the Causes of Popular Dissatisfaction 
with the Administration of Justice. Class 
action practice was one of the topics con- 
sidered by the National Conference (often 
referred to as the "Pound Conference," in 
deference to Roscoe Pound and his land- 
mark address in 1906 entitled "The 
Causes of Popular Dissatisfaction with 
the Administration of Justice") and re- 



ferred to the ABA for follow-up study and 
action. 

Aside from general proposals to provide 
jurisdictional "floors" and "ceilings" to reg- 
ulate the size of class actions, greater 
judicial control over awards of attorneys' 
fees, and replacing the "opt-out" provi- 
sions with "opt-in" requirements, no 
meaningful reforms have as yet been de- 
veloped to render class action practice a 
more manageable tool. See American Bar 
Association, Report of Pound Conference 
Follow-up Task Force, 74 F.R.D. 159, 
194-97 (1976); Erickson, New Directions 
in the Administration of Justice: Re- 
sponses to the Pound Conference, 64 
A.B.A.J. 48, 52, 56 (1978); Schuck and 
Cohen, The Consumer Class Action: An 
Endangered Species, 12 San Diego L.Rev. 
39 (1974); Comment, Class Actions and 
the Need for Legislative Reappraisal, 50 
Notre Dame Law. 285 (1974); Comment, 
The Federal Courts Take a New Look at 
Class Actions, 27 Baylor L. Rev. 751 
(1975); Dam, Class Actions: Efficiency, 
Compensation, Deterrence, and Conflict of 
Interest, 4 J. Legal Studies 47, 56-61 
(1975). 



Rule 24. Intervention. 

(a) Intervention of right. Upon timely application, anyone shall be permitted 
to intervene in an action: 

(1) v^hen a statute confers an unconditional right to intervene; or 

(2) when the applicant claims an interest relating to the property or 
transaction which is the subject of the action and he is so situated that the 
disposition of the action may as a practical matter impair or impede his ability 
to protect that interest, unless the applicant's interest is adequately repre- 
sented by existing parties. 

(b) Permissive intervention. Upon timely application anyone may be permit- 
ted to intervene in an action: 

(1) when a statute confers a conditional right to intervene; or 

(2) when an applicant's claim or defense and the main action have a 
question of law or fact in common. 

When a party to an action relies for ground of claim or defense upon any 
statute or executive order administered by a federal or state governmental 



133 



Rule 24 MISSISSIPPI COURT RULES 

officer or agency, or upon any regulation, order, requirement, or agreement 
issued or made pursuant to the statute or executive order, the officer or agency 
upon timely application may be permitted to intervene in the action. In 
exercising its discretion the court shall consider whether the intervention will 
unduly delay or prejudice the adjudication of the rights of the original parties. 

(c) Procedure. A person desiring to intervene shall serve a motion to 
intervene upon the parties as provided in Rule 5. The motion shall state the 
grounds therefor and shall be accompanied by a pleading setting forth the 
claim or defense for which intervention is sought. The same procedure shall be 
followed when a statute gives a right to intervene. 

(d) Intervention by the state. In any action (1) to restrain or enjoin the 
enforcement, operation, or execution of any statute of the State of Mississippi 
by restraining or enjoining the action of any officer of the State or any political 
subdivision thereof, or the action of any agency, board, or commission acting 
under state law, in which a claim is asserted that the statute under which the 
action sought to be restrained or enjoined is to be taken is unconstitutional, or 
(2) for declaratory relief brought pursuant to Rule 57 in which a declaration or 
adjudication of the unconstitutionality of any statute of the State of Missis- 
sippi is among the relief requested, the party asserting the unconstitutionality 
of the statute shall notify the Attorney General of the State of Mississippi 
within such time as to afford him an opportunity to intervene and argue the 
question of constitutionality. 

COMMENT 

Rule 24, Intervention, concludes these available in courts of law. See, e. g., Miss, 
rules' treatment of parties to civil actions: Code Ann. § 11-33-101 (other creditors 
Rule 19 details who must be joined; Rule may intervene in attachment action insti- 
20 details who may be joined; Rule 24 tuted against a debtor); §§ 31-5-1 and -9 
governs the rights of a stranger to the (in action on bond of contractor for Public 
action who desires to be joined. Works Contracts materialmen and labor- 
It has long been the law in Mississippi ers may intervene); § 53-3-19 (in forfei- 
that a total stranger cannot interfere with ture and sale of oil and gas products 
the objects and purposes of a civil suit as seized as contraband, persons adversely 
between the original parties. Neverthe- affected thereby may intervene); § 71- 
less, when it has happened that an owner 3-71 (workmen's compensation employer 
or part owner has a claim or interest in or insurer entitled to intervene in action 
property which is the subject of a pending by employee against third party); and 
action and which may be materially af- § 75-31-335 (1972) (any person damaged 
fected by the outcome of the litigation, he may intervene in injunction action per- 
has been allowed to intervene to protect taining to violation of Mississippi Milk 
his interests; this is referred to as equita- Products Sale Law); City ofBiloxi v. Gully, 
ble intervention. See V. Griffith, Missis- 187 Miss. 664, 193 So. 786 (1940). 
sippi Chancery Practice, §§ 410, 411 (2d M.R.C.P. 24 undertakes to continue to 
ed. 1950), quoted in Edwards v. Harper, distinguish between two kinds of inter- 
321 So.2d 301 (Miss.1975). vention: 24(a) pertains to Intervention of 
Additionally, intervention has been al- Right and provides that an applicant 
lowed when specifically permitted by stat- "shall be permitted to intervene" if he 
ute; statutory intervention appears to satisfies the tests of that portion of the 
have been the only form of intervention rule; 24(b), however, is labeled Permissive 

134 



RULES OF CIVIL PROCEDURE 



Rule 24 



Intervention and prescribes conditions 
under which an appHcant "may be permit- 
ted to intervene" in an action. 

If a statute of Mississippi grants a right 
to intervene, intervention is absolute or 
permissive depending on whether the 
statute creates an unconditional or condi- 
tional right. Other than this, intervention 
is said to be of right under 24(a)(2) when 
the applicant claims an interest relating 
to the property or transaction that is the 
subject of the action and he is so situated 
that the disposition of the action as a 
practical matter may impair or impede his 
ability to protect that interest, unless his 
interest is adequately represented by ex- 
isting parties. An applicant who does not 
meet the test of 24(a) may be permitted to 
intervene under 24(b)(2) if his claim or 
defense and the main action have a ques- 
tion of law or fact in common. 7A Wright & 
Miller, Federal Practice and Procedure, 
Civil § 1902 (1972). 

So viewed, it is apparent that Rule 24 is, 
in practical effect, substantially the equiv- 
alent of traditional Mississippi practice in 
the area of intervention: 24(a)(1) and 
(b)(1) conform generally to traditional 
statutory intervention, and 24(a)(2) and 
(b)(2) follow equitable intervention prac- 
tices. However, the rule gives law courts 
intervention powers formerly accorded 
only to courts of equity. 

Whether a particular application to in- 
tervene falls under 24(a) or 24(b) makes at 
least one important difference: An appli- 
cation for permissive intervention is ad- 
dressed to the discretion of the court, 
whereas an application for intervention of 
right poses only a question of law. 7A 
Wright & Miller, supra. 

Intervention pursuant to 24(a) and (b) 
both require that the application be 
"timely." The requirement of timeliness is 
not of fixed meaning and provides an 
opportunity (even under 24(a)) for the 
court to take some account of the practical 
situation and the effect on those already 
parties and on the economical disposition 
of judicial business by allowing interven- 



tion. Rule 24(a) represents a judgment 
that in the situation there described jus- 
tice demands that the interest of the ab- 
sentee should predominate over the inter- 
ests of the original parties and of trial 
convenience, but if the absentee has failed 
to move promptly to protect his interest he 
may find himself denied relief. 7A Wright 
& Miller, supra. Rule 24(d) allows the 
State of Mississippi to intervene in any 
civil action wherein a major element of 
controversy pertains to the constitutional- 
ity of a state statute. The purpose of this 
provision is to protect the public's interest 
in the result of an action that may have 
far-reaching statewide implications. No- 
tice to the Attorney General is mandatory 
even if the court thinks the constitutional 
question frivolous, but failure to give the 
notice does not deprive the court of juris- 
diction to decide the case. Rule 24(d) was 
patterned after the following similar rules 
from other jurisdictions: Alabama Rules of 
Civil Procedure, R. 24(b); Maine Rules of 
Civil Procedure, R. 24(d); Minnesota 
Rules of Civil Procedure, R. 24.04; Tennes- 
see Rules of Civil Procedure, R. 24.04; 
Federal Rules of Civil Procedure, R. 24(c). 

Rule 24(d) allows the State of Missis- 
sippi to intervene in any civil action 
wherein a major element of controversy 
pertains to the constitutionality of a state 
statute. The purpose of this provision is to 
protect the public's interest in the result of 
an action that may have far-reaching 
statewide implications. Notice to the At- 
torney General is mandatory even if the 
court thinks the constitutional question 
frivolous, but failure to give the notice 
does not deprive the court of jurisdiction 
to decide the case. Rule 24(d) was pat- 
terned after the following similar rules 
from other jurisdictions: Alabama Rules of 
Civil Procedure, R. 24(b); Maine Rules of 
Civil Procedure, R. 24(d); Minnesota 
Rules of Civil Procedure, R. 24.04; Tennes- 
see Rules of Civil Procedure, R. 24.04; 
Federal Rules of Civil Procedure, R. 24(c). 
See State v. Watkins, 676 So. 2d 247 (Miss. 
1996). 

[Amended March 22, 2001.] 



135 



Rule 24 



MISSISSIPPI COURT RULES 



JUDICIAL DECISIONS 



Construction. 
Divorce proceedings. 
Intervention as of right. 
Intervention by state. 
Intervention; improper. 
Intervention; permissive. 
Motion wrongly denied. 
Procedure. 
Time for appeal. 
Timeliness of motion. 

Construction. 

Workers' compensation insurance car- 
rier could pursue an appeal even though it 
did not file a formal intervention notice 
pursuant to Miss. R. Civ. P. 24 because the 
trial court and all other parties had acted 
as if the carrier had intervened and the 
equities of hearing the appeal favored the 
insurance carrier. Federated Mut. Ins. Co. 
V. McNeal, 943 So. 2d 658 (Miss. 2006). 

In a paternity action, the mother ar- 
gued that she had a fundamental right, as 
a mother, to retain the birth name given to 
her child, and that the paternal presump- 
tion in Miss. Code Ann. § 93-9-9(1) consti- 
tuted both a due process and equal protec- 
tion violation, but she had waited three 
years (until the final hearing on custody, 
support, and visitation), to act on her prior 
motion to amend the earlier judgment of 
the chancellor, which had given the child 
the father's surname. The Mississippi Su- 
preme Court held: (1) although other ju- 
risdictions had established that a parent 
had a fundamental constitutional right in 
his/her child's name, the supreme court 
had yet to recognize that same was funda- 
mental; (2) the mother had made no chal- 
lenge to the constitutionality of § 93-9- 
9(1) in her motion to alter or amend, and 
the father and the trial court were first 
apprised of her constitutional challenge 
when she appealed to the instant court; 
(3) the Mississippi Attorney General had 
received no notice of her constitutional 
challenge until he received her appellate 
brief; and (4) consequently, the issue was 
procedurally barred pursuant to Miss. R. 
Civ. P. 24(d), and because she had failed to 
raise the constitutional issue in the trial 
court. Powers v. Tiebauer, 939 So. 2d 749 
(Miss. 2005). 



Whether putative intervenor is likely to 
prevail on merits is not part of calculus in 
which trial court should engage in consid- 
ering an application to intervene. Guar- 
anty Nat'l Ins. Co. v. Pittman, 501 So. 2d 
377 (Miss. 1987). 

Divorce proceedings. 

A man's second wife was entitled to 
intervene in a proceeding in which the 
man's first wife sought to set aside their 
divorce judgment in order to protect her 
property and marital rights. Cohen v. Co- 
hen, 748 So. 2d 91 (Miss. 1999). 

Intervention as of right. 

Standard of review for intervention of 
right under Miss. R. Civ. P. 24(a)(2) is de 
novo, while the standard of review for 
permissive intervention under Rule 
24(b)(2) is abuse of discretion; the chan- 
cery court erred in denying a buyer's mo- 
tion for intervention of right under Rule 
24(a)(2) in a hospital's action to enforce a 
contract for the acquisition of a surgery 
center's membership interests, assets, 
and certificate of need because the four 
requirements necessary to establish inter- 
vention of right, including timeliness, an 
adequate interest in the action, impaired 
ability to protect that interest, and inade- 
quate representation of that interest, 
were met. Madison HMA, Inc. v. St. Domi- 
nic-Jackson Mem. Hosp., 35 So. 3d 1209 
(Miss. 2010). 

Although the railroad company had a 
substantial financial interest in the adop- 
tion by the grandfather, that interest was 
purely economic since the grandfather's 
adopted children would be able to join his 
natural children to maintain and continue 
the grandfather's asbestos suit against 
the railroad company because they were 
his dependants and beneficiaries, and the 
three adopted children were receiving ap- 
proximately $ 1,932 per month from the 
grandfather's retirement with the rail- 
road company, a benefit they could not 
have received had they not been adopted. 
Therefore, because the railroad company's 
claim for intervention was based solely on 
its property and monetary concerns, inter- 
vention under Miss. R. Civ. P. 24(a)(2) was 
precluded. D.C.S. v. J.F., 44 So. 3d 1006 



136 



RULES OF CIVIL PROCEDURE 



Rule 24 



(Miss. Ct. App. 2009), writ of certiorari 
dismissed en banc by 2010 Miss. LEXIS 
515 (Miss. Sept. 30, 2010). 

Trial court abused its discretion in 
denying the grandmother's motion to in- 
tervene as the grandmother's interests in 
the safety and well-being of her grandchil- 
dren were not being represented by the 
existing parties; they deprived the chil- 
dren, and particularly the granddaughter, 
of the court's protection and it was never 
appropriate to deprive children of due 
process safeguards by punishing one of 
the litigants in a custody battle and refus- 
ing to consider allegations of abuse of the 
children. S.G. v. D.C., 13 So. 3d 269 (Miss. 
2009). 

Motion to intervene filed by the Gover- 
nor of Mississippi, the Mississippi Divi- 
sion of Medicaid, and the Mississippi 
Health Care Trust Fund was timely filed 
and they had the right to intervene under 
Miss. R. Civ. P. 24 (a) because: (1) the 
application for intervention was timely 
due to the current, ongoing, and future 
expenditures and income from tobacco 
settlement monies; (2) the original parties 
to the tobacco litigation will not suffer 
prejudice by their intervention; (3) deny- 
ing the intervention would deny the Gov- 
ernor and the Trust Fund their arguable 
and purported right to input regarding 
expenditures or budgeting of the settle- 
ment funds; and (4) there were unusual 
circumstances militating for a determina- 
tion that the application was timely. Hood 
ex rel. State Tobacco Litigation v. State, 
958 So. 2d 790 (Miss. 2007). 

Appellate court affirmed the trial 
court's denial of the foster parent's motion 
to intervene under Miss. R. Civ. P. 24(a) in 
adoption proceedings brought by the indi- 
vidual as it was in the best interests of the 
minor child for the matter to proceed 
without intervention. Neshoba County 
Dep't of Human Servs. v. Hodge, 919 So. 
2d 1157 (Miss. Ct. App. 2006). 

Trial court erred in denying an employ- 
er's and insurers' request to intervene in 
an employee's negligence action against a 
doctor and a medical corporation. The 
employer and the insurers were entitled 
to intervene because the employee's para- 
plegia, which occurred after back surgery, 
was proximately caused by her on-the-job 



injury. Miss. Ins. Guar. Ass'n v. Brewer, 
922 So. 2d 807 (Miss. Ct. App. 2005), writ 
of certiorari denied by 927 So. 2d 750, 
2006 Miss. LEXIS 126 (Miss. 2006). 

Department of human services had a 
duty to intervene in paternity action, and 
its interv-ention in action was one of right. 
Mississippi State Dep't of Human Servs. v. 
Barnett, 633 So.^2d 430 (Miss. 1993). 

Workers' compensation carrier was en- 
titled to participate in proceeds of settle- 
ment reached during trial between in- 
jured employee and driver of other 
automobile involved in collision. Sneed v. 
Verdun, 611 So. 2d 947 (Miss. 1992). 

Liability insurer should have been al- 
lowed to intervene in personal injury ac- 
tion stemming from accident between au- 
tomobile and truck, where defendant 
truck driver had defaulted and intervener 
was insurance carrier for truck driver's 
putative employer. Guaranty Nat'l Ins. 
Co. V. Pittman, 501 So. 2d 377 (Miss. 
1987). 

This rule does not address the manner 
or degree of participation of all parties, 
after an intervenor exercises right of in- 
tervention; manner or degree of participa- 
tion must be left to broad discretion of 
trial judge, whose responsibility it is to see 
that each party is afforded opportunity to 
assert and protect his own interest in an 
orderly, fair proceeding. Reikes v. Martin, 
471 So. 2d 385 (Miss. 1985). 

Intervention by state. 

In a medical negligence case in which a 
mother raised her constitutional chal- 
lenges to the Mississippi Tort Claims Act 
(MTCA) for the first time on appeal, al- 
though, in her motion to amend the com- 
plaint, the mother stated that she wished 
to raise the constitutionality of the MTCA, 
there was no valid complaint to amend. 
The mother had not complied with the 
notice requirement under Miss. R. Civ. P. 
24(d), and she had not complied with the 
90-day notice period in Miss. Code Ann. 
§ 11-46-11(1). Jones v. Laurel Family 
CHnic, P.A., 37 So. 3d 665 (Miss. Ct. App. 
2010). 

Supposed "notice" to a special assistant 
attorney general is not sufficient under 
Miss. R. Civ. P. 24(d) or Miss. R. App. P. 44; 
therefore, a hospital was procedurally 
barred from bringing constitutional chal- 



137 



Rule 24 



MISSISSIPPI COURT RULES 



lenges to Miss. Code Ann. § 41-7-191(16) 
under Miss. Const, art. 4, § 87, Miss. 
Const, art. 3, § 14, and the Fourteenth 
Amendment where there was no notice to 
the Mississippi Attorney General. 
Oktibbeha County Hosp. v. Miss. State 
Dep't of Health, 956 So. 2d 207 (Miss. 
2007). 

Appellant's failure to challenge the con- 
stitutionality of Miss. Code Ann. § 11-46- 
13(1) in the trial court or to give notice to 
the Attorney General precluded the Su- 
preme Court from considering the issue on 
appeal. Donaldson v. Covington County, 
846 So. 2d 219 (Miss. 2003). 

In an abuse and neglect proceeding, the 
parents were procedurally barred from 
challenging the constitutionality of the 
proceeding because they failed to send 
notice of their challenge to the Attorney 
General. In re D.O., 798 So. 2d 417 (Miss. 
2001). 

Chancellor erred in declaring portion of 
state statute unconstitutional without 
giving proper notice to Attorney General 
to appear and defend constitutionality of 
the statute. State v Watkins, 676 So. 2d 
247 (Miss. 1996). 

Intervention; improper. 

Denial of the doctor's intervention in 
the modification of a property settlement 
agreement (PSA) entered into by the hus- 
band and wife was appropriate because 
the doctor did not have a legally protected 
interest in the divorce; he was not named 
in the PSA, and it provided for no legal 
obligations or duties owed expressly to 
him. Additionally, given the doctor's at- 
tempt to intermeddle in the divorce pro- 
ceedings, after having meddled with the 
marital relationship of the husband and 
wife, justice hardly demanded interven- 
tion by him. Dare v Stokes, 62 So. 3d 958 
(Miss. 2011). 

Denial of the intervenors' motion to in- 
tervene was improper pursuant to Miss. 
R. Civ. P. 24(a), where the motion was 
timely, in part, because the court could 
find no prejudice to the existing parties 
since the suit under the Open Meetings 
Act, § 25-41-1 et seq., had been stayed in 
1998 for a number of years and the quiet 
title suit was not initiated until late 2002. 
Hayes v. Leflore County Bd. of Supervi- 
sors, 935 So. 2d 1026 (Miss. Ct. App. 



2005), reversed by 2006 Miss. LEXIS 210 
(Miss. Apr. 27, 2006). 

County which owned pulp mill and land 
on which it was located was not entitled to 
intervene as a defendant in action against 
mill operator for its discharge of toxic 
substances into river, where county failed 
to establish that its interest was not al- 
ready adequately represented by existing 
party defendants. Perry County v. Fergu- 
son, 618 So. 2d 1270 (Miss. 1993). 

Intervention of resident security hold- 
ers was improper in utility rate increase 
proceedings, where they were already a 
party to the proceedings through officers 
of power company, and their interest was 
adequately represented by the company. 
State ex rel. Pittman v. Mississippi Pub. 
Serv. Comm'n, 506 So. 2d 978 (Miss. 
1987). 

Intervention; permissive. 

Since the Governor of Mississippi, the 
Mississippi Division of Medicaid, and the 
Mississippi Health Care Trust Fund were 
not seeking to intervene in a concluded 
matter which had already been litigated, 
the assertion by the partnership, a non- 
profit organization created to reduce un- 
derage smoking, that they could not inter- 
vene because the matter was already 
litigated lacked merit; by allowing inter- 
vention, the payments made by the to- 
bacco companies each year would not be 
altered, and therefore the settlement 
agreement between the state and the to- 
bacco companies would not be jeopar- 
dized. Hood ex rel. State Tobacco Litiga- 
tion V State, 958 So. 2d 790 (Miss. 2007). 

Motion to intervene filed bj^ the Gover- 
nor of Mississippi, the Mississippi Divi- 
sion of Medicaid, and the Mississippi 
Health Care Trust Fund could not be set 
aside for a perceived lack of statutory or 
legal authority because: (1) the Governor 
unquestionably had not only the statutory 
but also the constitutional authority to 
intervene since the Governor was under a 
solemn duty to act in order to assure 
faithful execution of Mississippi's laws; (2) 
the division had a compelling interest to 
see that the annual payments of $20 mil- 
lion were placed in the Mississippi Health 
Care Trust Fund because the suit was 
initially brought to recoup monies ex- 
pended by the division; (3) the Mississippi 



138 



RULES OF CIVIL PROCEDURE 



Rule 24 



Health Care Trust Fund was authorized 
to recoup funds paid to a partnership, a 
non-profit organization created to reduce 
under age smoking; and (4) the Missis- 
sippi Attorney General declined to take 
action. Hood ex rel. State Tobacco Litiga- 
tion V. State, 958 So. 2d 790 (Miss. 2007). 

The court improperly allowed a physi- 
cian to intervene in an action to establish 
paternity brought prior to an anticipated 
wrongful death action by the father 
against the physician based upon alleged 
negligent medical treatment leading to 
the deaths of the mother and child; there 
was no suggestion that the physician's 
defense to the claim of negligence would 
be in any way impacted by the paternity 
action and his liability existed indepen- 
dent of the paternity action. In re Estate 
of Johnson, 779 So. 2d 164 (Miss. Ct. App. 
2000). 

State Democratic Committee should 
have been allowed to intervene permis- 
sively, if not by right, in election contest 
involving candidate it sponsored; Commit- 
tee's interest in the subject matter was 
substantial, and only the Committee 
could provide relief. Cummings v. 
Benderman, 681 So. 2d 97 (Miss. 1996). 

Motion wrongly denied. 

Company's motion to intervene in an 
action concerning ownership of land 
leased by the company should have been 
granted. After obtaining partial relief 
sought in its proposed complaint attached 
to its motion to intervene pursuant to 
Miss. R. Civ. P. 24(c), the company was 
entitled to continued participation in the 
proceedings as a matter of law. Lamar 
Cos. V. Cocajo Trust, 54 So. 3d 222 (Miss. 
2011). 

Procedure. 

Since the driver failed to raise her con- 
stitutional challenge that the Mississippi 
Tort Claims Act violated the due process 
clause of the state constitution before the 
trial court and also failed to notify the 
Mississippi Attorney General in accor- 
dance with Miss. R. Civ. P. 24(d), her issue 
was procedurally barred on appeal. Cana- 
dian National/Illinois Cent. R.R. v. Smith, 
926 So. 2d 839 (Miss. 2006). 

Unemployment compensation claim- 
ant's constitutional argument on appeal 



was procedurally barred because his argu- 
ment was unsupported by citation to au- 
thority and he did not provide notice to 
the attorney general under Miss. R. Civ. P. 
24(d) and Miss. R. App. P. 44(a) that the 
constitutionality of a statute was being 
challenged; therefore, he was procedur- 
ally barred from advancing his constitu- 
tional argument on appeal. Grehan v. 
Miss. Empl. Sec. Comm'n, 918 So. 2d 774 
(Miss. Ct. App. 2005). 

Plaintiff's failure to raise the issue of 
the constitutionality of a statute before 
the trial court and to notify the Missis- 
sippi Attorney General resulted in a pro- 
cedural bar on that issue. Cockrell v. Pearl 
River Valley Water Supply Dist., 865 So. 
2d 357 (Miss. 2004). 

Estate administrator failed to comply 
with the rule and the constitutionality 
issue of the statute was barred, because it 
was not raised in the trial court and 
because the attorney general's office was 
not properly notified. Corey v. Skelton, 
834 So. 2d 681 (Miss. 2003). 

Party who is granted permission to in- 
tervene pursuant to M.R.C.P. Rule 
24(b)(2) is not required to issue a sum- 
mons and complaint pursuant to Rule 4; 
rather, service of motion to intervene ac- 
companied by complaint, pursuant to Rule 
5, is sufficient service. Breland v. Smith- 
Johnson, Inc., 501 So. 2d 389 (Miss. 1987). 

Time for appeaL 

Grandmother's appeal was timely 
where an immediate appeal of a denial of 
an application for leave to intervene un- 
der Miss. R. Civ. P. 24 was not required 
and the father did not file a brief in the 
current appeal, Miss. R. App. P. 31(d). S.G. 
V. D.C., 13 So. 3d 269 (Miss. 2009). 

Timeliness of motion. 

In a church's action to confirm title to 
property, a title holder's father's Miss. R. 
Civ. P. 24(a) motion to intervene was 
found untimely as the father pretended to 
be title holder to the property and an- 
swered the action before admitting the 
father's identity and seeking to intervene 
as himself; the delay prejudiced the 
church. Vasser v. Bibleway M.B. Church, 
50 So. 3d 381 (Miss. Ct. App. 2010). 

Although Miss. R. Civ. P. 25(c) transfers 
were generally permissive, the execution 



139 



Rule 25 MISSISSIPPI COURT RULES 

sale and purchase of lawsuits, as choses in and five others were injured, it was error 

action, left only one party, a bank, with for the court to permit the representatives 

any interest in the litigation; because of two of the deceased persons to intervene 

Miss. R. Civ. P. 17 allowed only the real in an action filed against the defendant 

party in interest to prosecute its claims, city where the motion for intervention was 

the trial court abused its discretion by not filed until after the expiration of the 

refusing to substitute the bank as plaintiff notice of claim and statute of hmitations 

in the actions. Hayes v. Leflore County Bd. provisions of § 11-46-11. City of Tupelo v. 

of Supervisors, 935 So. 2d 1015 (Miss. Martin, 747 So. 2d 822 (Miss. 1999). 
2006). 

In an action arising out of an automo- 
bile accident in which five persons died 

RESEARCH REFERENCES 

ALR. Right to Intervene in Court Re- 
view of Zoning Proceeding. 47 A.L.R.6th 
439. 

Rule 25. Substitution of parties. 

(a) Death. 

(1) If a party dies and the claim is not thereby extinguished, the court shall, 
upon motion, order substitution of the proper parties. The motion for substi- 
tution may be made by any party or by the successors or representatives of the 
deceased party and, together v^ith the notice of hearing, shall be served on the 
parties as provided in Rule 5 and upon persons not parties in the manner 
provided in Rule 4 for the service of summons. The action shall be dismissed 
without prejudice as to the deceased party if the motion for substitution is not 
made v^ithin ninety days after the death is suggested upon the record by 
service of a statement of the fact of the death as herein provided for the service 
of the motion. 

(2) In the event of the death of one or more of the plaintiffs or of one or more 
of the defendants in an action in w^hich the right sought to be enforced survives 
only to the sui^iving plaintiff or only against the surviving defendants, the 
action does not abate. The death shall be suggested upon the record and the 
action shall proceed in favor of or against the surviving parties. 

(b) Legal disability. If a party comes under a legal disability the court upon 
motion served as provided in subdivision (a) of this rule may allov^ the action 
to be continued by or against his representative. 

(c) Transfer of interest. In case of any transfer of interest, the action may be 
continued by or against the original party, unless the court upon motion directs 
the person to vs^hom the interest is transferred to be substituted in the action 
or joined v^ith the original party. Service of the motion shall be made as 
provided in subdivision (a) of this rule. 

(d) Public officers; death or separation from office. When a public officer is a 
party to an action in his official capacity and during its pendency dies, resigns, 
or otherw^ise ceases to hold office, the action does not abate and his successor 
is automatically substituted as a party. Proceedings follov^ing the substitution 
shall be in the name of the party, but any misnomer not affecting the 

140 



RULES OF CIVIL PROCEDURE 



Rule 25 



substantial rights of the parties shall be disregarded. An order of substitution 
may be entered at any time, but the omission to enter such an order shall not 
affect the substitution. 

COMMENT 



Prior Mississippi practice provided two 
methods for the substitution of deceased 
parties or for public officers who died in 
office or were separated from their office: 
motion to revive, and bill of revivor. See 
Miss. Code Ann. §§ 11-7-25 through -31 
(1972). Normally, under the statutes the 
suggestion of death of a party plaintiff 
would be filed by the defendant; if the 
successors to the plaintiff did not appear, 
the suit could be dismissed. Smith v. Pat- 
tison, 45 Miss. 619 (1871). If the succes- 
sors desired to enter the suit, it was only 
necessary for them to file a motion to 
revive, supported by affidavits reciting the 
facts of plaintiff's death and their appoint- 
ment as plaintiff's legal representatives. 
Notice of the motion to revive was not 
required because the defendants were 
considered to be before the forum and 
were deemed to have taken notice of the 
statutory proceedings suggesting death 
and revival. Mitchell v. Conner, 42 Miss. 
550 (1869); Criscoe v. Adams, 123 Miss. 
37, 85 So. 119 (1920). Essentially the 
same procedure was followed in the event 
of the defendant's death, but notice of the 
motion of revival was required to be 
served. Smith v. Margraves, 114 Miss. 687, 
75 So. 545 (1917). In the event the rights 
or liabilities of the survivors became liti- 
gious — such as in a dispute as to who the 
true heirs were, or where interests under 
a will or trust were contested — a bill of 
revivor could have been resorted to. Pro- 
ceedings on a bill of revivor were con- 
ducted as an original action designed to 
resolve the litigated issues. Sovereign 
Camp, W. O. W. v. Durr, 186 Miss. 850, 
192 So. 45 (1939). See V. Griffith, Missis- 
sippi Chancery Practice, §§ 416-419 (2d 
ed. 1950). 

M.R.C.P. 25 provides, in four subsec- 
tions, for the substitution of parties in the 
event of death, incompetency, transfer of 
interest, or public officers' succession in 
office. Rule 25 is inapplicable if substitu- 
tion is sought for any reason other than 



one of these four circumstances, in which 
case resort must be to Rules 17 (real party 
in interest), 21 Tadding or dropping par- 
ties), or 24 (intervention). 

Rule 25 presupposes that substitution 
is for someone who was already a party to 
a pending action; substitution is not pos- 
sible if one who was named as a party in 
fact died before the commencement of the 
action. See Misukami v. Buras, 419 F.2d 
1319 (5th Cir. 1969). Similarly if one 
named in a filed complaint dies, becomes 
incompetent, vacates office, or transfers 
his interest before he is served with pro- 
cess, substitution is available but process 
must be served on the new party to ac- 
quire in personam jurisdiction. See Ran- 
som V. Brennan, 437 F.2d 513 (5th Cir. 
1971). 

As the rule states, the action will be 
dismissed without prejudice if a motion 
for substitution is not made within ninety 
days of the suggestion of death on the 
record. The suggestion of death must be in 
writing and must be served on parties in 
accordance with Rule 5 and upon persons 
not parties as provided in Rule 4 for the 
service of a summons. The general provi- 
sions of M.R.C.P. 6(b) apply to motions to 
substitute; accordingly, the court may ex- 
tend the period for substitution if timely 
requested. Similarly, the court may allow 
substitution to be made after the expira- 
tion of the ninety-day period on a showing 
that the failure to act earlier was the 
result of excusable neglect. M.R.C.P. 
6(b)(2). See 7A Wright & Miller, Federal 
Practice and Procedure, Civil §§ 1951, 
1955 (1972). 

Objection to substitution may be made 
either by the representative of the dece- 
dent or by any other party, since the 
presence or absence of a party may affect 
the rights of other parties. The court 
should not resolve the merits of the con- 
troversy in passing on the motion for 
substitution. 7 A Wright & Miller, supra, 
§ 1956. 



141 



Rule 25 



MISSISSIPPI COURT RULES 



The procedure for substitution after a 
party becomes incompetent is the same as 
for substitution after death. M.R.C.P. 
25(b). 

M.R.C.P. 25(c) apphes to transfers, as- 
signments, and corporate mergers and 
dissolutions. See Miss. Code Ann. §§ 79- 
3-151 (effect of merger or consohdation); 
79-3-183(e) (articles of dissolution); and 
79-3-209 (1972) (survival of remedy after 
dissolution, suspension or failure). 

The most significant feature of Rule 
25(c) is that it does not require that any 
action be taken after an interest has been 
transferred; the action may be continued 
by or against the original party and the 
judgment will be binding on his successor 
in interest even though he is not named. 
An order of joinder in such a situation is 
merely a discretionary determination by 
the trial court that the transferee's pres- 
ence would facilitate the conduct of the 
litigation. Since Rule 25(c) is wholly per- 
missive there is no time limit on moving to 
substitute under its provisions. The mo- 



tion for substitution may be made by any 
party. The rule incorporates by reference 
the provisions of Rule 25(a) on service of 
the motion. Thus, the motion, with notice 
of the hearing, may be served on the 
existing parties in accordance with Rule 5 
but must be served on persons who are not 
already parties as provided in Rule 4 for 
service of process. 7 A Wright & Miller, 
supra § 1958. See Miss. Code Ann. § 11- 
7-3 (1972) (assignee of chose in action may 
sue). 

M.R.C.P. 25(d) apphes only when the 
public official is sued "in his official capac- 
ity." In those situations in which the pub- 
lic official's personal assets may be subject 
to execution after judgment. Rule 25(a) 
governs his substitution in the event of 
death. Subsection (d)(2) of Federal Rule 
25, after which this Mississippi rule was 
patterned, appears as M.R.C.P. 17(e), 
since the latter provision pertains more to 
capacities and interests of parties than to 
substitution of parties. 



JUDICIAL DECISIONS 



Applicability. 

Death. 

Transfers of interest. 

Applicability. 

Although Miss. R. Civ. P. 25(c) transfers 
were generally permissive, the execution 
sale and purchase of lawsuits, as choses in 
action, left only one party, a bank, with 
any interest in the litigation; because 
Miss. R. Civ. P. 17 allowed only the real 
party in interest to prosecute its claims, 
the trial court abused its discretion by 
refusing to substitute the bank as plaintiff 
in the actions. Citizens Nat'l Bank v. Dix- 
ieland Forest Prods., LLC, 935 So. 2d 1004 
(Miss. 2006). 

The rule, by its terms, applies to judg- 
ments, and not to pre-trial discovery or- 
ders. TXG Intrastate Pipeline Co. v. 
Grossnickle, 716 So. 2d 991 (Miss. 1997). 

Death. 

According to established precedent and 
Miss. Code Ann. § 91-7-237, an execu- 
trix's medical malpractice action against a 
doctor and a medical practice survived a 
decedent's death and did not have to be 



recommenced because the executrix com- 
plied with Miss. R. Civ. P. 25 as the doctor 
and medical practice made no suggestion 
of death upon the record to trigger the 
ninety-day time requirement set out by 
the rule; nowhere does Rule 25 state that 
the substitution of parties is a commence- 
ment of a new action, but instead, it is the 
continuation of a prior action. Harris v. 
Darby, 17 So. 3d 1076 (Miss. 2009). 

Medical malpractice suit was properly 
dismissed for failure to state a claim be- 
cause plaintiffs did comply with Miss. 
Code Ann. § 11-1-58 by filing with their 
complaint either an expert disclosure or a 
certificate of counsel stating that an ex- 
pert disclosure had not yet been obtained 
because of the running of the statute of 
limitations under Miss. Code Ann. § 15-1- 
36; strict compliance with Miss. Code Ann. 
§ 11-1-58 was mandatory, and defen- 
dants, a medical center and the estate of a 
deceased doctor, which had been substi- 
tuted as a defendant under Miss. R. Civ. P. 
25(a)(1) after the doctor's death and reas- 
serted the defenses raised by the doctor, 
had both raised as an affirmative defense 



142 



RULES OF CIVIL PROCEDURE 



Rule 26 



plaintiffs' failure to comply with the stat- 
ute. Caldwell v. N. Miss. Med. Ctr., Inc., 
956 So. 2d 888 (Miss. 2007). 

The requirement of Miss. R. Civ. P. 25(a) 
to move the substitution of the estate of a 
deceased party within 90 days of service of 
a statement of the fact of the death did not 
begin running when counsel for the de- 
ceased party moved for a continuance 
based on the party's death. Estate of Bax- 
ter V. Shaw Assocs., 797 So. 2d 396 (Miss. 
Ct. App. 2001). 

Defendant did not fulfill the rule's re- 
quirement concerning service on non-par- 
ties when it mailed a copy of the Sugges- 
tion of Death to plaintiffs' attorney rather 
than to estate of deceased party plaintiff; 
since estate was not properly served, the 
ninety-day limitations period never began 
to run, and therefore trial court did not err 
in denying defendant's motion to dismiss 
deceased as a party plaintiff, and in allow- 
ing plaintiffs to substitute estate more 
than ninety days after defendant filed its 
Suggestion of Death. Hurst v. Southwest 
Miss. Legal Servs. Corp., 610 So. 2d 374 
(Miss. 1992), overruled on other grounds, 
Rains v. Gardner, 731 So. 2d 1192 (Miss. 
1999). 

Transfers of interest. 

In the underlying action, the telecom- 
munications company maintained that it 
should not have been named as a defen- 
dant by the landowner as it was not the 



parent company of the Mississippi Power 
Company (also a named defendant in the 
underling action), and had no easements 
or fiber optic telecommunications lines in 
Mississippi. However, the distinction ad- 
dressed by the trial court in granting the 
landowner's motion to dismiss his tres- 
pass and unjust enrichment action, was 
that the landowner's claims were dis- 
missed with prejudice rather than with- 
out prejudice; the trial court was in the 
best position to consider the telecommuni- 
cation company's ore tonus motion for 
attorney's fees and costs and did not abuse 
its discretion in denying same where it 
found the circumstances may have been 
unusual, but that they were not excep- 
tional. Miss. Power Co. v. Hanson, 905 So. 
2d 547 (Miss. 2005). 

By its terms this rule applied to judg- 
ments, not pre-trial discovery orders, and 
therefore it was error for chancellor to 
impose same discovery sanctions on sec- 
ond defendant that it imposed on first, 
where second defendant had complied 
with all discovery requests. TXG Intra- 
state Pipeline Co. v. Grossnickle, 716 So. 
2d 991 (Miss. 1997). 

Transferee, as owner of certain percent- 
ages in working interests and interests in 
the litigation, was a necessary, indispens- 
able party and should have been joined 
upon defendant's motion. TXG Intrastate 
Pipeline Co. v. Grossnickle, 716 So. 2d 991 
(Miss. 1997). 



CHAPTER V. DEPOSITIONS AND DISCOVERY 

Rule 26. General provisions governing discovery. 

(a) Discovery methods. Parties may obtain discovery by one or more of the 
follov^ing methods: depositions upon oral examination or written questions; 
v^ritten interrogatories; production of documents or things or permission to 
enter upon land or other property, for inspection and other purposes; and 
requests for admission. Unless the court orders otherv^ise under subdivisions 
(c) or (d) of this rule, the frequency of use of these methods is not limited. 

(b) Scope of Discovery. Unless otherwise limited by order of the court in 
accordance with these rules, the scope of discovery is as follows: 

(1) In general. Parties may obtain discovery regarding any matter, not 
privileged, which is relevant to the issues raised by the claims or defenses of 
any party The discovery may include the existence, description, nature, 
custody, condition and location of any books, documents, electronic or magnetic 
data, or other tangible things; and the identity and location of persons (i) 



143 



Rule 26 MISSISSIPPI COURT RULES 

having knowledge of any discoverable matter or (ii) who may be called as 
witnesses at the trial. It is not ground for objection that the information sought 
will be inadmissible at the trial if the information sought appears reasonably 
calculated to lead to the discovery of admissible evidence. 

(2) Insurance agreements. A party may obtain discovery of the existence and 
contents of any insurance agreement under which any person carrying on an 
insurance business may be liable to satisfy part or all of a judgment which may 
be entered in the action or to indemnify or reimburse for payments made to 
satisfy the judgment. Information concerning the insurance agreement is not 
by reason of disclosure admissible in evidence at trial. For purposes of this 
paragraph, an application for insurance shall not be treated as part of an 
insurance agreement. 

(3) Trial preparation: materials. Subject to the provisions of subdivision 
(b)(4) of this rule, a party may obtain discovery of documents and tangible 
things otherwise discoverable under subdivision (b)(1) of this rule and pre- 
pared in anticipation of litigation or for trial by or for another party or by or for 
that other party's representative (including that party's attorney, consultant, 
surety, indemnitor, insurer, or agent) only upon a showing that the party 
seeking discovery has substantial need of the materials in the preparation of 
that party's case and that the party is unable without undue hardship to obtain 
the substantial equivalent of the materials by other means. In ordering 
discovery of such materials when the required showing has been made, the 
court shall protect against disclosure of the mental impressions, conclusions, 
opinions, or legal theories of an attorney or other representative of a party 
concerning the litigation. 

A party may obtain without the required showing a statement concerning 
the action or its subject matter previously made by that party. Upon request, 
a person not a party may obtain without the required showing a statement 
concerning the action or its subject matter previously made by that person. If 
the request is refused, the person may move for a court order. Rule 37(a)(4) 
applies to the award of expenses incurred in relation to the motion. For 
purposes of this paragraph, a statement previously made is: (A) a written 
statement signed or otherwise adopted or approved by the person making it, or 
(B) a stenographic, mechanical, electrical, or other recording, or a transcription 
thereof, which is a substantially verbatim recital of an oral statement by the 
person making it and contemporaneously recorded. 

(4) Trial preparations: experts. Discovery of facts known and opinions held 
by experts, otherwise discoverable under subsection (b)(1) of this rule and 
acquired or developed in anticipation of litigation or for trial, may be obtained 
only as follows: 

(A)(i) A party may through interrogatories require any other party to 
identify each person whom the other party expects to call as an expert witness 
at trial, to state the subject matter on which the expert is expected to testify, 
and to state the substance of the facts and opinions to which the expert is 
expected to testify and a summary of the grounds for each opinion. 

(ii) Upon motion, the court may order further discovery by other means, 
subject to such restrictions as to scope and such provisions, pursuant to 

144 



RULES OF CIVIL PROCEDURE Rule 26 

subsection (b)(4)(C) of this rule, concerning fees and expenses, as the court may 
deem appropriate. 

(B) A party may discover facts known or opinions held by an expert who has 
been retained or specially employed by another party in anticipation of 
litigation or preparation for trial and who is not expected to be called as a 
witness at trial only upon a showing of exceptional circumstances under which 
it is impracticable for the party seeking discovery to obtain facts or opinions on 
the same subject by other means. 

(C) Unless manifest injustice would result, (i) the court shall require that 
the party seeking discovery pay the expert a reasonable fee for time spent in 
responding to discovery under subsections (b)(4)(A)(ii) and (b)(4)(B) of this 
rule, and (ii) with respect to discovery obtained under subsection (b)(4)(A)(ii) of 
this rule, the court may require, and with respect to discovery obtained under 
subsection (b)(4)(B) of this rule, the court shall require, the party seeking 
discovery to pay the other party a fair portion of the fees and expenses 
reasonably incurred by the latter party in obtaining facts and opinions from 
the expert. 

(5) Electronic data. To obtain discovery of data or information that exists in 
electronic or magnetic form, the requesting party must specifically request 
production of electronic or magnetic data and specify the form in which the 
requesting party wants it produced. The responding party must produce the 
electronic or magnetic data that is responsive to the request and is reasonably 
available to the responding party in its ordinary course of business. If the 
responding party cannot-through reasonable efforts-retrieve the data or infor- 
mation requested or produce it in the form requested, the responding party 
must state an objection complying with these rules. If the court orders the 
responding party to comply with the request, the court may also order that the 
requesting party pay the reasonable expenses of any extraordinary steps 
required to retrieve and produce the information. 

(c) Discovery conference. At any time after the commencement of the action, 
the court may hold a conference on the subject of discovery, and shall do so if 
requested by any party. The request for discovery conference shall certify that 
counsel has conferred, or made reasonable effort to confer, with opposing 
counsel concerning the matters set forth in the request, and shall include: 

1. a statement of the issues to be tried; 

2. a plan and schedule of discovery; 

3. limitations to be placed on discovery, if any; and 

4. other proposed orders with respect to discovery. 

Any objections or additions to the items contained in the request shall be 
served and filed no later than ten days after service of the request. 

Following the discovery conference, the court shall enter an order fixing the 
issues; establishing a plan and schedule of discovery; setting limitations upon 
discovery, if any; and determining such other matters, including the allocation 
of expenses, as are necessary for the proper management of discovery in the 
case. 

145 



Rule 26 MISSISSIPPI COURT RULES 

Subject to the right of a party who properly moves for a discovery conference 
to prompt convening of the conference, the court may combine the discovery 
conference with a pretrial conference authorized by Rule 16. 

The court may impose sanctions for the failure of a party or counsel without 
good cause to have cooperated in the framing of an appropriate discovery plan 
by agreement. Upon a showing of good cause, any order entered pursuant to 
this subdivision may be altered or amended. 

(d) Protective orders. Upon motion by a party or by the person from whom 
discovery is sought, and for good cause shown, the court in which the action is 
pending, or in the case of a deposition the court that issued a subpoena 
therefor, may make any order which justice requires to protect a party or 
person from annoyance, embarrassment, oppression, or undue burden or 
expense, including one or more of the following: 

(1) that the discovery not be had; 

(2) that the discovery may be had only on specified terms and conditions, 
including a designation of the time or place; 

(3) that the discovery may be had only by a method of discovery other than 
that selected by the party seeking discovery; 

(4) that certain matters not be inquired into, or that the scope of the 
discovery be limited to certain matters; 

(5) that discovery be conducted with no one present except persons desig- 
nated by the court; 

(6) that a deposition after being sealed to be opened only by order of the 
court; 

(7) that a trade secret or other confidential research, development, or 
commercial information not be disclosed or be disclosed only in a designated 
way; 

(8) that the parties simultaneously file specified documents or information 
enclosed in sealed envelopes to be opened as directed by the court; 

(9) the court may make any other order which justice requires to protect the 
party or witness from annoyance, embarrassment, oppression or undue burden 
or expense, including provision for payment of expenses attendant upon such 
deposition or other discovery device by the party seeking same. 

If the motion for a protective order is denied in whole or in part, the court 
may, on such terms and conditions as are just, order that any party or person 
provide or permit discovery. Rule 37(a)(4) applies to the award of expenses 
incurred in relation to the motion. 

(e) Sequence and timing of discovery. Unless the court upon motion, for the 
convenience of parties and witnesses and in the interests of justice, orders 
otherwise, methods of discovery may be used in any sequence and the fact that 
a party is conducting discovery, whether by deposition or otherwise, shall not 
operate to delay any other party's discovery. 

(f) Supplementation of responses. A party who has responded to a request for 
discovery with a response that was complete when made is under no duty to 
supplement his response to include information thereafter acquired, except as 
follows: 

146 



RULES OF CIVIL PROCEDURE 



Rule 26 



(1) A party is under a duty seasonably to supplement that party's response 
with respect to any question directly addressed to (A) the identity and location 
of persons (i) having knowledge of discoverable matters, or (ii) who may be 
called as witnesses at the trial, and (B) the identity of each person expected to 
be called as an expert witness at trial, the subject matter on which the person 
is expected to testify, and the substance of the testimony. 

(2) A party is under a duty seasonably to amend a prior response if that 
party obtains information upon the basis of which (A) tlje party knows that the 
response was incorrect when made, or (B) the party knows that the response, 
though correct when made, is no longer true and the circumstances are such 
that a failure to amend the response is in substance a knowing concealment. 

(3) A duty to supplement responses may be imposed by order of the court, 
agreement of the parties, or at any time prior to trial through new requests for 
supplementation of prior responses. (Amended effective March 1, 1989; March 
13, 1991; April 13, 2000; Amended effective May 29, 2003 to add Rule 26(5) 
addressing discovery of electronic data.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective April 13, 2000, Rule 26(c) was 
amended to allow the court on its own 
motion to convene a discovery conference, 
So. 2d (West Miss.Cas. 2000). 

Effective March 13, 1991, Rule 
26(b)(l)(ii) was amended to delete the oral 
testimony of witnesses from the listing of 
matter that might be discovered by a 
party. Rule 26(d) was amended to provide 
that in the case of depositions protective 



orders might be made by the court that 
issued a subpoena therefor. 574-576 So. 2d 

XXIII (West Miss. Gas. 1991). 
Effective March 1, 1989, Rule 26(b)(1) 

and Rule 26(D(1) were amended to provide 
for the identification of (and supplementa- 
tion of the prior identification of) those, in 
addition to experts, who may be called as 
witnesses at the trial. 536-538 So. 2d 

XXIV (West Miss. Gas. 1989). 



COMMENT 



With two important exceptions 
M.R.G.R 26 is identical to Miss. Code Ann. 
§ 13-1-226 (1972): subdivision 26(B)(1) 
narrows the scope of permissible discov- 
ery, although it does permit the discovery 
of the identity and location of persons who 
may be called as witnesses at the trial; a 
new subdivision (c) is added and the orig- 
inal subdivisions are renumbered accord- 
ingly 

Sweeping and abusive discovery is en- 
couraged by permitting discovery confined 
only by the "subject matter" of a case — 
the language of Miss. Code Ann. § 13-1- 
226(b) (1972) — rather than limiting it to 
the issues presented. Discovery should be 
limited to the specific practices or acts 
that are in issue. Determining when dis- 
covery spills beyond "issues" and into 
"subject matter" will not always be easy. 



but M.R.G.R 26(b)(1) is intended to favor 
limitations, rather than expansions, on 
permissible discovery. Accordingly, "ad- 
missible evidence" referred to in the last 
sentence of 26(b)( 1) must be limited by the 
new relevancy which emerges from the 
term "issues, " rather than from the more 
sweeping term "subject matter." 

Rule 26(b) was amended effective May 
29, 2003, adding subsection (5) to make 
specific provision for discovery of data and 
information existing in electronic and 
magnetic form. Recognizing that special 
problems may exist in the retrieval of 
such data, the rule limits the duty to that 
of production of electronic and magnetic 
data to that which is reasonably available 
to the responding party in its ordinary 
course of business. Further, if extraordi- 
nary steps are required to retrieve and 



147 



Rule 26 



MISSISSIPPI COURT RULES 



produce the information, the court may 
require the requesting party to pay the 
expense of those steps, in addition to costs 
which may be assessed under Rule 
26(d)(9). The production of data compila- 
tions which are subject to production un- 
der Rule 34 is also subject to the limita- 
tions of Rule 26(b)(5). 

Rule 26(c) establishes a discovery con- 
ference convened on the court's own mo- 
tion or at the request of any party. This 
conference is a corollary to the limitation 
on the scope of discovery dictated by Rule 
26(b)(1). Whether the conference is con- 
vened on the court's own motion or upon a 
litigant's certified request, the court has 
control over the time of its convening and 
the scope of its reach. 

Rule 26(c) provides the procedure for 
early judicial control but continues to im- 
pose principal responsibility upon the lit- 
igating bar for the preparation of a case. 
In the great majority of cases, opposing 
counsel should be able, without judicial 
intervention, to formulate an appropriate 
plan and schedule of discovery in relation 
to issues readily defined by agreement. In 
those instances, however, where it would 
facilitate the discovery process, the court 
may hold a discovery conference on its 
own motion or upon the request of either 
party 



The discovery conference will produce 
an order defining: (a) a "plan" in which the 
types and subjects of discovery are set 
forth, e. g., oral depositions of A, B and C; 
production of contracts and any letters, 
correspondence or memoranda explaining 
or modifying them, etc.; (b) a "schedule" 
for discovery which specifies the time and 
place for discovery events, e. g., the dates 
and places for the taking of depositions of 
A, B and C, or the time within which 
documents are to be produced, and (c) 
such "limitations" as might otherwise be 
employed in protective orders, e. g., the 
documents of C shall be disclosed only to 
B's lawyers. 

The rule also provides for "allocation of 
expenses." This provision would permit 
courts, as justice dictates, to reassign the 
usual financial burdens of discovery. For 
example, a court might condition discov- 
ery demanded by party A upon the pay- 
ment by A of all or part of party B's 
expenses, including attorneys' fees. 

An early accord or order on discovery 
may require later modification. Rule 26(c) 
allows such amendments freely. Again, 
cooperation among counsel should be the 
rule rather than the exception. 

Comment amended effective March 1, 
1989; April 13, 2000; amended effective 
May 29, 2003. 



JUDICIAL DECISIONS 



Applicability. 

Disclosure of witnesses. 

Discoverable matters. 

Discovery of statements. 

Discovery violations. 

Expert testimony. 

Expert witnesses. 

Filing with court. 

Litigation materials. 

Matters exempt from discovery. 

Protective orders. 

Sanctions. 

Scope of discovery. 

Supplementation of responses. 

Work product. 

Workers' compensation proceedings. 

Applicability. 

In a proceeding for adverse possession, 
the failure of the party opposing the claim 
of adverse possession to answer the re- 



quests for admission conclusively estab- 
lished that the deceased had exclusive use 
of the property at the times at issue, that 
the deceased held himself out as the 
owner of the property, and that the de- 
ceased did not allow others to use the 
property except with his permission. Wil- 
hams V. Estate of Wilhams, 952 So. 2d 950 
(Miss. Ct. App. 2006), writ of certiorari 
denied en banc by 951 So. 2d 563, 2007 
Miss. LEXIS 522 (Miss. 2007). 

Architect sought to appeal a decision 
from the Mississippi State Board of Archi- 
tecture that found that the architect had 
unlawfully engaged in the practice of ar- 
chitecture in Mississippi; the chancery 
court improperly dismissed the appeal be- 
cause the time for appeal expired on a 
Saturday, and when the notice and bond 
were filed the following Monday, the ap- 
peal was timely; Miss. R. Civ. P. 6 was 



148 



RULES OF CIVIL PROCEDURE 



Rule 26 



identical to Miss. R. App. P. 26(a) in all 
respects. Broady v. Miss. State Bd. of 
Architecture, 936 So. 2d 441 (Miss. Ct. 
App. 2006). 

Although defendant argued that the 
trial court erred in dismissing his appeal 
because it was dismissed by means of a 
procedure for dismissal of state civil, not 
criminal cases, and the appellate court 
initially agreed that Miss. R. Civ. P. 5 and 
41 applied to civil and not criminal cases; 
an appeal was not perfected until a writ- 
ten notice of appeal and a cost bond were 
filed within 3() days of the judgment ap- 
pealed, such that both a cost and appear- 
ance bond were required in appeals from 
municipal courts, and no Mississippi case 
permitted the filing of the required bonds 
past the 30-day appeal time. Riley v. Town 
of Lambert, 856 So. 2d 721 (Miss. Ct. App. 
2003). 

Correct standard for awarding sanc- 
tions for a vexatiously overbroad sub- 
poena is that under M.R.C.P Rule 45, not 
Rules 26 or 37. SLM v. Clinton Pub. Sch. 
Dist., 677 So. 2d 737 (Miss. 1996). 

Insofar as they may be applicable, pro- 
cedures contemplated by this rule are 
available to either party in a bar disciplin- 
ary matter for the taking of depositions of 
parties or witnesses. Mississippi State 
Bar V. Attorney L., 511 So. 2d 119 (Miss. 
1987). 

Disclosure of witnesses. 

Landowner did not designate any ex- 
perts during the discovery phase of the 
matter and did not indicate his desire to 
call an expert witness prior to trial, as he 
was required to do under Miss. R. Civ. P. 
26(b)(4)(A)(i). Had the landowner wished 
to preserve that issue for appeal, he was 
required to make a proffer of the witness's 
proposed testimony pursuant to Miss. R. 
Evid. 103(a)(2), and because the land- 
owner neglected to make a proffer of the 
proposed expert testimony, the issue was 
not properly preserved for the appellate 
court's review. Pittman v. Dykes Timber 
Co., 18 So. 3d 923 (Miss. Ct. App. 2009). 

Where a driver sued a utility company 
for negligence after the driver drove into 
some utility poles located in a truck 
parked on the side of a highway, the trial 
court did not err by allowing the utility 
company to present a witness, although 



the witness was not revealed during dis- 
covery, since that witness was not discov- 
ered until after the trial began. Myles v. 
Entergy Miss., Inc., 828 So. 2d 861 (Miss. 
Ct. App. 2002). 

The requirements of Miss. R. Civ. P. 
26(b) to disclose the name and testimony 
of an expert witness did not apply to an 
attorney testifying on behalf of a party 
who was not qualified as an expert. Estate 
of Baxter v Shaw Assocs., 797 So. 2d 396 
(Miss. Ct. App. 2001). 

Bar disciplinary tribunal erred in allow- 
ing testimony of witness who had not been 
previously disclosed pursuant to attor- 
ney's discovery requests. Emil v. Missis- 
sippi Bar, 690 So. 2d 301 (Miss. 1997). 

Discoverable matters. 

Granting of a directed verdict in favor of 
a physician provider, a physician, and a 
medical center, in a claim for medical 
malpractice was appropriate pursuant to 
Miss. R. Civ. P 26(f)(1) because, if the 
patient's counsel had disclosed the medi- 
cal articles in question to defendants 
shortly after gathering them in May 2005, 
the supplementation might have been 
seasonable. However, disclosure only six 
days prior to trial provided insufficient 
time for defendants' counsel to have ade- 
quately prepared a rebuttal. Hartel v. 
Pruett, 998 So. 2d 979 (Miss. 2008). 

Trial court in divorce case was ordered 
on remand to rule as to each of 29 catego- 
ries of financial information, granting the 
wife access to those documents revealing 
financial information (including any cor- 
porate documents relating to distribution 
or salary) that would positively or nega- 
tively affect her agreed entitlement to the 
husband's various forms of income. West v. 
West, 891 So. 2d 203 (Miss. 2004). 

Court in action for fraud and negligence 
in connection with pre-sale residential 
termite inspection erred in failing to com- 
pel answer to interrogatory asking defen- 
dant to identify every person for whom it 
had performed a pre-sale termite inspec- 
tion in the past five years, since evidence 
of similar occurrences was relevant and 
admissible to show absence of mistake or 
accident, and plan or intent. Dawkins v. 
Redd Pest Control Co., 607 So. 2d 1232 
(Miss. 1992). 



149 



Rule 26 



MISSISSIPPI COURT RULES 



Discovery of statements. 

Trial court did not err in requiring de- 
fendant to produce, at trial, the recorded 
statement of a non-party witness, where 
plaintiff had not sought statement by pre- 
trial discovery or subpoena. Seaboard Sys. 
R.R. V. Cantrell, 520 So. 2d 479 (Miss. 
1987). 

Discovery violations. 

Finding against the company in the 
driver's action for damages was improper 
where, whether or not the driver's counsel 
actually intended to obtain unfair advan- 
tage over the company by designating an 
expert at such a late date, the untimely 
designation, belated submission of Miss. 
R. Civ. R 26(b)(4) interrogatory responses, 
last-minute deposition, and the addition 
of a third theory of liability as to the 
company weeks after the initial designa- 
tion, had the effect of working a severe 
prejudice on the company. Int'l Paper Co. 
V Townsend, — So. 2d — , 2006 Miss. App. 
LEXIS 108 (Miss. Ct. App. Feb. 7, 2006), 
opinion withdrawn by, substituted opinion 
at 961 So. 2d 741, 2007 Miss. App. LEXIS 
192 (Miss. Ct. App. 2007). 

Order by a trial court that granted the 
individuals' motion to compel a doctor to 
respond to a set of interrogatories and 
request for admissions was reversed; the 
state supreme court held that the trial 
court abused its discretion in granting the 
order as the discovery violated Miss. R. 
Civ. R26(d) becasue it was unduly burden- 
some, and oppressive as many were con- 
fusing, and therefore, ambiguous. Haley v. 
Harbin, 933 So. 2d 261 (Miss. 2005). 

Chancellor abused his discretion in re- 
fusing to require disclosure of the under- 
l5dng business documents with respect to 
the loan on the divorcing parties' property; 
simply ruling that the wife could get all 
the financial information she needed by 
way of deposition did not satisfy her dis- 
covery requests — in contentious proceed- 
ings involving complex finances of such 
great magnitude, it is not sufficient to 
simply tell one party to rely on the self- 
interested assertions of their opponent 
and his witnesses — doing so eviscerates 
the aggrieved party of the ability to make 
a substantive showing of its case. West v. 
West, 891 So. 2d 203 (Miss. 2004). 



Trial judge did not abuse his discretion 
in refusing to allow evidence that was not 
disclosed, pursuant to a discovery request, 
regarding a doctor who treated the acci- 
dent victim. However, the victim was not 
prejudiced by the exclusion as the jury 
nonetheless got the information the victim 
wished to convey through the doctor's re- 
port, the jurors' viewing of the victim's 
scar and determining for themselves the 
extent of permanent disfigurement. 
Haggerty v. Foster, 838 So. 2d 948 (Miss. 
2002). 

Chancery court was within its authority 
in excluding testimony of defendant's ex- 
pert witness, where defendant failed to 
disclose expert's name in response to in- 
terrogatories and failed to supplement its 
answers before trial. Simmons v. Bank of 
Mississippi, 593 So. 2d 40 (Miss. 1992). 

Expert testimony. 

Where the patient designated a doctor 
as her expert witness in a medical mal- 
practice case, the designation failed to 
state his opinion, the facts on which he 
based his opinion, or a summary of the 
grounds supporting his opinion; the pa- 
tient's supplemental designation was filed 
three weeks after the deadline. The trial 
court did not err by striking the expert, 
because the designation did not comply 
with Miss. R. Civ P. 26(b)(4)(A)(i). Moore 
V Delta Reg'l Med. Ctr., 23 So. 3d 541 
(Miss. Ct. App. 2009), review denied by 22 
So. 3d 1193, 2009 Miss. LEXIS 608 (Miss. 
2009). 

Where an employee sued the railroad 
for injuries sustained while mounting a 
moving locomotive, the trial court did not 
err by allowing an expert to testify regard- 
ing reasons why the major railroads were 
amending their safety rules and allowing 
the expert to refer to statistical informa- 
tion; the subject matter contained in the 
expert report included the subject matter 
he testified to at trial, and there was no 
discovery violation. Canadian Nat'1/Ill. 
Cent. R.R. v Hall, 953 So. 2d 1084 (Miss. 
2007). 

Appellate court's reasoning in affirming 
summary judgment for the physician 
stemmed not from the fact that the pa- 
tient failed to file his expert's designation 
one week late. The appellate court af- 
firmed because the patient failed to re- 



150 



RULES OF CIVIL PROCEDURE 



Rule 26 



spond to the physician's motion with an 
affidavit, submitted by an expert, that 
estabUshed the standard of acceptable 
professional practice, that the physician 
deviated from that standard, that such 
deviation was the proximate cause of the 
patient's injuries, and that the patient 
suffered damages as a result; the letter 
submitted by the patient's expert, even if 
had been in proper affidavit form, was 
merely a broad statement of general alle- 
gations and did not announce the applica- 
ble standard of care. Potter v. Hopper, 907 
So. 2d 376 (Miss. Ct. App. 2005), writ of 
certiorari dismissed by 910 So. 2d 574, 
2005 Miss. LEXIS 455 (Miss. 2005). 

Accident reconstructionist's testimony 
and calculations relied on distances and 
speeds that were reported to him and, at 
trial, when the reports of speed and dis- 
tance changed, said expert recalculated 
his opinion using the same methods and 
formulas that were admitted into evi- 
dence. The subject matter or substance of 
the expert's testimony did not change and 
his testimony was not improperly admit- 
ted pursuant to Miss. R. Civ. P. 26 
(b)(4)(A)(i). McKenzie v. Supervalu, Inc., 
883 So. 2d 1188 (Miss. Ct. App. 2004). 

Though plaintiff was tardy in supple- 
menting its discovery responses to provide 
defendant with its expert's data compila- 
tions and measurements, since defen- 
dant's ability to deal with this data at trial 
was not impaired, the trial court's denial 
of defendant's motion for a continuance 
was not an abuse of discretion. Choctaw 
Maid Farms, Inc. v. Hailey, — So. 2d — , 
2001 Miss. LEXIS 302 (Miss. Oct. 31, 
2001), opinion withdrawn by, substituted 
opinion at 822 So. 2d 911, 2002 Miss. 
LEXIS 181 (Miss. 2002). 

The plaintiff disclosed the name and 
expected testimony of an expert witness in 
her responses to the defendant's interrog- 
atories and, therefore, the expert's testi- 
mony as to the permanency of the plain- 
tiff's injuries was properly introduced. 
Ford V. Johnson, 750 So. 2d 546 (Miss. Ct. 
App. 1999). 

In a false arrest action, the court im- 
properly allowed a physician to give ex- 
pert testimony, where he was not listed as 
an expert witness pursuant to the rule, 
but he stated that the arrest of the plain- 



tiff exacerbated her pre-existing depres- 
sion. Foster v. Noel, 715 So. 2d 174 (Miss. 
1998). 

Trial court did not err in excluding tes- 
timony of expert witness hired two weeks 
before trial, where it was not until the day 
before trial that the expert produced a 
preliminary report based on his research, 
and a final report was not delivered until 
three days after the trial had begun. 
Broadhead v. Bonita Lakes Mall, Ltd. 
Partnership, 702 So. 2d 92 (Miss. 1997). 

Testimony of plaintiff's expert witness 
did not go beyond scope of her supplemen- 
tal interrogatory answers; language in in- 
terrogatory and that used at trial were not 
vastly different, and if interrogatories 
were read as a whole, defendant had suf- 
ficient notice of what expert's testimony 
would entail. Southwest Miss. Regional 
Medical Ctr. v. Lawrence, 684 So. 2d 1257 
(Miss. 1996). 

Where trial court limited scope of expert 
witness depositions by prohibiting inquiry 
into bias, interest, or prejudice of any of 
the experts, this precluded plaintiffs from 
discovering potentially valuable informa- 
tion, but did not amount to reversible 
error. McCarty v. Kellum, 667 So. 2d 1277 
(Miss. 1995). 

Absent showing of exceptional circum- 
stances, deposition of an expert retained 
by a party but not expected to testify is 
impermissible. GMC v. Jackson, 636 So. 
2d 310 (Miss. 1994), cert, denied, 513 U.S. 
928, 115 S. Ct. 317, 130 L. Ed. 2d 279 
(1994). 

Testimony of attorney as to what his 
examination of local land records reflected 
was not the type of expert testimony sub- 
ject to an interrogatory under subdivision 
(b)(4)(A)(i) of this rule. R <& S Dev, Inc. v. 
Wilson, 534 So. 2d 1008 (Miss. 1988). 

Trial court did not err in applying sanc- 
tions and disallowing testimony and ap- 
praisal of expert not disclosed until day 
prior to trial. Varner v. Patrick, 523 So. 2d 
319 (Miss. 1988). 

Trial court was not required to exclude 
testimony of defendants' expert, where 
plaintiff did not request an order compel- 
ling discovery when defendants gave what 
plaintiff deemed to be unsatisfactory re- 
sponses to its expert witness interroga- 
tory. State Highway Comm'n v. Havard, 
508 So. 2d 1099 (Miss. 1987). 



151 



Rule 26 



MISSISSIPPI COURT RULES 



Trial judge did not err in admitting 
testimony of defendants' expert; where he 
was identified in interrogatory responses 
as an expert "in the field of mechanical 
operation of locomotive engines and 
trains," his testimony on operation of 
train's emergency brakes was not error. 
Slay V. Illinois Cent. G.R.R., 511 So. 2d 
875 (Miss. 1987). 

Circuit court erred in allowing expert to 
testify for defendant in negligence action; 
expert's name had not been disclosed in 
answers to plaintiff's interrogatories, and 
defendant's claim that expert was a "re- 
buttal witness" was rejected. Harris v. 
General Host Corp., 503 So. 2d 795 (Miss. 
1986). 

Expert witnesses. 

Emergency physician and nurse practi- 
tioner did not give impermissible expert 
testimony, and the February 2007 supple- 
mental response to "Interrogatory No. 5" 
was not a discovery violation in regard to 
Miss. R. Civ. P. 26; both witnesses were 
identified and the employer was given 
reasonable notice as to the nurse practi- 
tioner's treatment of the driver. APAC 
Miss., Inc. V. Johnson, 15 So. 3d 465 (Miss. 
Ct. App. 2009). 

Summary judgment was properly 
granted in a medical malpractice suit, a 
patient's expert witness affidavit to sup- 
port her claim was untimely filed nine 
days following the summary judgment 
hearing; discovery responses were to be 
supplemented seasonably pursuant to 
Miss. R. Civ. P. 26(f). Dotson v. Jackson, 8 
So. 3d 230 (Miss. Ct. App. 2008), writ of 
certiorari denied by 12 So. 3d 531, 2009 
Miss. LEXIS 212 (Miss. 2009). 

Under Miss. R. Civ. P 26(b)(4)(A)(i), the 
plaintiff could call experts only to rebut 
opinions from defendants' expert not dis- 
closed in discovery, and not reasonably 
anticipated; if the plaintiff wished to coun- 
ter expected testimony from defendants' 
experts, she had fair opportunity to obtain 
experts of her own and properly disclose 
her expert's opinions. Banks v. Hill, 978 
So. 2d 663 (Miss. 2008). 

In a personal injury case, defendant's 
expert witness disclosure was proper be- 
cause the expert witness designation 
clearly indicated that defendant's expert 
would testify that "the sole cause of the 



accident was plaintiff's following too 
closely and failing to keep her vehicle 
under control by not braking and/or steer- 
ing in such a manner to maintain control 
of her vehicle"; It followed reasonably 
from that summary of the expert's opinion 
that the expert might testify about the 
speeds, distances, and times involved in 
the accident. Walker v. Gann, 955 So. 2d 
920 (Miss. Ct. App. 2007). 

Miss. R. Civ. P. 26(b)(4) mandated cer- 
tain disclosures concerning expert wit- 
nesses, and it was necessary that litigants 
understand that there was an obligation 
to timely comply with the orders of trial 
court; the daughter wholly failed in her 
duty to designate a medical expert, a 
crucial component of her cause of action, 
and summary judgment was appropri- 
ately entered. Brooks v. Roberts, 882 So. 
2d 229 (Miss. 2004). 

Heirs failed to show excusable neglect 
for not filing their designation of experts 
in a timely manner; their motion for ex- 
tension of time to designate expert wit- 
nesses was therefor denied. Bowie v. 
Montfort Jones Mem'l Hosp., 861 So. 2d 
1037 (Miss. 2003). 

Where a medical malpractice defen- 
dant's interrogatory response negligently 
identified an expert as a urologist rather 
than an expert in infectious diseases, but 
adequately described the proposed sub- 
stance of the testimony, the trial court did 
not abuse its discretion in allowing the 
testimony, or in denying the patient's sur- 
viving relatives' motions for directed ver- 
dict, judgment notwithstanding the ver- 
dict, and a new trial. Buskirk v. Elliott, 
856 So. 2d 255 (Miss. 2003). 

Trial court did not abuse its discretion 
by not permitting a grief therapist to 
testify because the plaintiffs failed to ad- 
equately respond to the defendant's dis- 
covery requests concerning expert testi- 
mony. Palmer v. Volkswagen of Am., Inc., 
905 So. 2d 564 (Miss. Ct. App. 2003), aff'd 
in part and rev'd in part, remanded, 904 
So. 2d 1077 (Miss. 2005). 

In a personal injury action, the defen- 
dant should not have been unfairly sur- 
prised when the plaintiff's expert witness 
stated a specific level of physical impair- 
ment of the plaintiff because (1) the plain- 
tiff identified the witness as an expert 



152 



RULES OF CIVIL PROCEDURE 



Rule 26 



witness who would testify as to the plain- 
tiff's injuries, treatment, and causation, 
and (2) the expert was also expected to 
testify that the plaintiff had a total dis- 
ability from his previous employment. Pe- 
terson V. Ladner, 785 So. 2d 290 (Miss. Ct. 
App. 2000). 

This rule does not require that an ex- 
pert be restricted to testify only to the 
literal words from his or her opinion and a 
summary of the related grounds; the very 
use of the words "substance" and "sum- 
mary" show that the rule does not require 
an expert to state solely the words of his or 
her compiled reports, and such a view 
would place form over substance. 
Holladay v. Holladay, 776 So. 2d 662 
(Miss. 2000). 

In an action against a pharmaceutical 
company and a physician arising from a 
massive stroke suffered by the plaintiff 
after taking a medication manufactured 
by the pharmaceutical company, an expert 
witness was properly allowed to testify on 
behalf of the pharmaceutical company be- 
cause the expert had been designated as 
an expert witness by the physician and a 
supplemental discovery response by the 
pharmaceutical company stated that it 
reserved the right to call in its case-in- 
chief any treating physician, any expert 
witness listed by the plaintiffs and any 
expert witness listed by any co-defendant, 
even if such co-defendant was not a party 
at the time of trial; although the supple- 
mental response was evasive or incom- 
plete, the plaintiff failed to meet her bur- 
den to seek relief from the court and, 
instead, waited until trial to object to the 
presentation of the expert witness. War- 
ren V. Sandoz Pharms. Corp., 783 So. 2d 
735 (Miss. Ct. App. 2000). 

The trial judge did not abuse his discre- 
tion by allowing the defendant's counsel to 
elicit opinions from a physician since (1) 
the plaintiffs' counsel participated in de- 
posing the physician prior to trial and, 
thus, the plaintiffs could hardly cry "am- 
bush" when the trial judge allowed the 
physician to express his "expert opinions," 
and (2) the plaintiffs had indicated during 
discovery that they intended to call the 
physician as their "fact" witness. 
Burnham v. Stevens, 734 So. 2d 256 (Miss. 
Ct. App. 1999). 



In finding the plaintiff's initial answer 
of "No decision has been made concerning 
any experts which may be relied upon. 
This response will be supplemented at the 
appropriate time," to be no answer at all, 
the trial judge abused his discretion; the 
plaintiff's initial answer was appropriate 
when given and was seasonably supple- 
mented to allow the defendant enough 
time to prepare before trial. Robert v. 
Colson, 729 So. 2d 1243 (Miss. 1999). 

Filing with court. 

Letters between the mother's and the 
father's attorneys indicated the dates on 
which the subpoena and notice thereof 
were served, the subpoena on a Friday, 
and the notice to the mother's attorney on 
the following Monday. Those letters did 
show that the father's attorney had failed 
to serve notice of the subpoena immedi- 
ately under Miss. R. Civ. P. 45, but the 
father's attorney's failure to follow correct 
procedure did not rise to the level of abuse 
of process; the trial court properly granted 
summary judgment in favor of the father 
and his attorney as to the abuse of process 
claim. Ayles v. Allen, 907 So. 2d 300 (Miss. 
2005). 

No evidence existed on when the stu- 
dent actually mailed the envelope, so it 
was possible that the envelope was depos- 
ited in a mailbox on the 29th, but not 
postmarked until the 30th; the postmark 
date did not determine the date of service, 
and being one day late in service of dis- 
covery responses could not be deemed a 
sufficient violation of the Mississippi 
Rules of Civil Procedure to warrant dis- 
missal with prejudice. Harvey v. Stone 
County Sch. Dist., 862 So. 2d 545 (Miss. 
Ct. App. 2003). 

Litigation materials. 

In determining whether investigative 
materials prepared by insurance claims 
adjusters are work-product prepared in 
anticipation of litigation, court should 
look to the facts of each case, and should 
consider the nature of the documents, the 
nature of the litigation and investigation, 
the relationship between the parties, and 
any other fact peculiar to the case. Haynes 
V. Anderson, 597 So. 2d 615 (Miss. 1992). 

Burden rests on the party resisting dis- 
covery to show that the material sought 



153 



Rule 26 



MISSISSIPPI COURT RULES 



was prepared in anticipation of litigation. 
Haynes v. Anderson, 597 So. 2d 615 (Miss. 
1992). 

Trial court did not err in declining to 
require railroad to produce notes and 
drawings of its investigator regarding ac- 
cident at crossing; decedent's representa- 
tive failed to allow at least ten days for 
documents to be produced, and she also 
had same opportunity as railroad to ob- 
serve crossing in an unaltered state sub- 
sequent to accident. Mitcham v. Illinois 
Cent. G.R.R., 515 So. 2d 852 (Miss. 1987). 

Matters exempt from discovery. 

Legal research memo prepared for the 
defendant by an attorney was research 
undertaken to respond to a client's re- 
quest; it fell within the purview of the 
attorney-client privilege and was thus not 
discoverable. Hewes v. Langston, 848 So. 
2d 800 (Miss. 2003). 

Letters, draft affidavits, and other cor- 
respondence circulated among counsel on 
matters of common interest, were pro- 
tected under the "common interest" prong 
of the attorney-client privilege as well as 
under the work product doctrine. Hewes v. 
Langston, 848 So. 2d 800 (Miss. 2003). 

Protective orders. 

Where the Harrison County Develop- 
ment Commission (HCDC), a political 
subdivision of the State of Mississippi, 
willfully and knowingly denied a county 
citizen access to certain records related to 
a planned development (in part, by unilat- 
erally requiring fees that were not part of 
its policy), and which were not exempt 
under the Mississippi Public Records Act 
of 1983, Miss. Code Ann. § 25-61-1 to 
Miss. Code Ann. § 25-61-17, it was prop- 
erly ordered to produce those records not 
specifically exempt, and pay a civil pen- 
alty, as well as attorney's fees. Pursuant to 
Miss. Code Ann. § 25-61-9(2), HCDC 
should have separated information on its 
director's salary and leave time (subject to 
disclosure), from his personnel file and 
disclosed any non exempt material; fur- 
ther, the information on its business part- 
ners or prospects were not confidential 
and were subject to disclosure, and there- 
fore, it was not entitled to a protective 
order per Miss. R. Civ. P. 26(d). Harrison 



County Dev. Comm'n v. Kinney, 920 So. 2d 
497 (Miss. Ct. App. 2006). 

Circuit court violated its protective re- 
sponsibility by allowing asexual assault 
victim premature inspection of allegedly 
privileged documents produced by the per- 
petrator's employer because counsel for 
the victim was in possession of the docu- 
ments hours before the employer was even 
aware that they had been released and 
before it was given a chance to appeal the 
court's decision. Simply issuing a protec- 
tive order in conjunction with the order 
compelling production was not enough to 
protect the employer's rights. McKinley v. 
Lamar Bank, — So. 2d — , 2005 Miss. 
LEXIS 611 (Miss. Sept. 22, 2005), opinion 
withdrawn by, substituted opinion at 919 
So. 2d 918, 2005 Miss. LEXIS 811 (Miss. 
2005). 

Because a service provider failed to base 
its allegations of fraud on any specific 
facts, a chancery court did not abuse its 
discretion in refusing to allow the pro- 
vider access to the highly confidential 
pricing models of its primary competitor 
under Miss. R. Civ. P. 26(d)(7) and Miss. 
Code Ann. § 75-26-3(d). Elec. Data Sys. 
Corp. V. Miss. Div. of Medicaid, 853 So. 2d 
1192 (Miss. 2003). 

Deponent in a deposition taken in Mis- 
sissippi for use in an out-of-state case was 
entitled to a protective order concerning 
sensitive matters as to which a protective 
order had been obtained in the out-of- 
state court. Barnes v. A Confidential 
Party, 628 So. 2d 283 (Miss. 1993). 

Information sought in wrongful death 
action against tobacco company consti- 
tuted a trade secret deserving of protec- 
tive order under subdivision (d)(7) of this 
rule; contents of protective order were 
primary responsibility of circuit court, 
which did not abuse its discretion. Amer- 
ican Tobacco Co. v. Evans, 508 So. 2d 1057 
(Miss. 1987). 

Sanctions. 

Chancery court did not abuse its discre- 
tion in excluding the testimony of an oc- 
currence witness, who was private inves- 
tigator hired to investigate a husband's 
gambling issues, under Miss. R. Civ. P. 
26(b)(4)(A)(i), because he was not identi- 
fied by a wife until three days before the 



154 



RULES OF CIVIL PROCEDURE 



Rule 26 



divorce proceeding. Irby v. Estate of Irby, 7 
So. 3d 223 (Miss. 2009). 

While the trial court's frustration with 
the discovery process was understand- 
able, the ordering of a new trial after a 
unanimous jury verdict for a vehicle man- 
ufacturer, based on a perceived violation 
of court orders which were never placed on 
record, was an abuse of discretion; the 
manufacturer violated a single order con- 
cerning the time frame for the submission 
of documents which it submitted two days 
late. Ford Motor Co. v. Tennin, 960 So. 2d 
379 (Miss. 2007). 

When an injured employee, who 
brought suit against her employer and a 
related casino alleging bad faith in con- 
nection to her workers' compensation 
claim, failed to comply with a trial court's 
discovery deadline, the trial court prop- 
erly struck the employee's expert's affida- 
vit. Buchanan v. Ameristar Casino Vicks- 
burg. Inc., 957 So. 2d 969 (Miss. 2007). 

Although the plaintiff failed to season- 
ably supplement her discovery responses 
so as to divulge the names of her experts 
in a medical malpractice action, the pen- 
alty should have been something less 
drastic than striking her supplemented 
responses and the affidavit of one of those 
experts where (1) the plaintiff pursued her 
case not perfectly but fairly diligently 
from filing until dismissal, (2) prior to the 
hearings on the motion to dismiss, she 
supplemented in detail and presented pos- 
sible arguable questions of fact of medical 
negligence, and (3) no trial date had been 
set at the time of supplementation. 
Thompson v. Patino, 784 So. 2d 220 (Miss. 
2001). 

The exclusion of the plaintiff's supple- 
mentation of her discovery responses 
identif5dng her expert witnesses and the 
striking of the affidavit of one of her ex- 
perts were inappropriate sanctions in a 
medical malpractice action, notwithstand- 
ing the plaintiff's neglect, where a trial 
date had not been set at the time of 
dismissal. Thompson v. Patino, — So. 2d 
— , 2000 Miss. LEXIS 91 (Miss. Apr. 20, 
2000), substituted opinion at 784 So. 2d 
220, 2001 Miss. LEXIS 127 (Miss. 2001). 

Where there was no violation of discov- 
ery rules or pre-trial court order, circuit 
judge was without authority to impose 



sanctions against plaintiff for scheduling 
deposition for a date two days before Pre- 
Trial Conference, after plaintiff had re- 
quested that Pre-Trial Conference be set. 
Jones V. Wiese, 652 So. 2d 175 (Miss. 
1995). 

Scope of discovery. 

Attorney's memorandum to the office 
file and other attorneys, noting conversa- 
tions with third parties, is protected by 
the work product doctrine; such memos 
receive even greater protection because 
they necessarily reveal the attorney's 
mental impressions, and they may be ob- 
tained through discovery only in rare situ- 
ations and upon a far stronger showing 
than for other work product documents. 
Hewes v. Langston, 853 So. 2d 1237 (Miss. 
2003). 

Miss. R. Civ. P. 26(b), as amended and 
made effective May 29, 2003, adds subsec- 
tion (5) to make specific provision for 
discovery of data and information existing 
in electronic and magnetic form. Recog- 
nizing that special problems may exist in 
the retrieval of such data, the rule limits 
the duty of production of electronic and 
magnetic data to that which is reasonably 
available to the responding party in its 
ordinary course of business; further, if 
extraordinary steps are required to re- 
trieve and produce the information, a 
court may require the requesting party to 
pay the expense of those steps, in addition 
to costs that may be assessed under Rule 
26(d)(9); finally, the production of data 
compilations that are subject to produc- 
tion under Miss. R. Civ. P. 34 is also 
subject to the limitations of Rule 26(b)(5). 
In re Miss. Rules of Civ. Procedure, — So. 
2d — , 2003 Miss. LEXIS 262 (Miss. May 
29, 2003). 

Where attorney responded to interroga- 
tories without revealing incident relevant 
to causation of injury in suit against his 
client, his actions went far beyond what 
could be considered a discovery dispute, 
and amounted to conduct involving dis- 
honesty, deceit, misrepresentation, ob- 
structing another party's access to evi- 
dence, conduct prejudicial to 
administration of justice, and both failure 
to disclose a material fact and making a 
false statement of material fact to a tribu- 



155 



Rule 26 



MISSISSIPPI COURT RULES 



nal. Mississippi Bar v. Land, 653 So. 2d 
899 (Miss. 1994). 

Supplementation of responses. 

According to the testimony, the pedes- 
trian's medical bills were incurred due to 
the injury at issue; under Miss. Code Ann. 
§ 41-9-119, the trial court committed re- 
versible error by refusing to allow them to 
be submitted to the jury; and a new trial 
was ordered, with directions that the par- 
ties be allowed to supplement their discov- 
ery responses with respect to expert wit- 
nesses. Estate of Bolden v. Williams, 17 
So. 3d 1069 (Miss. 2009). 

Trial court erred in granting defendants 
summary judgment on the family's wrong- 
ful death action as it erroneously equated 
a discovery deadline with a deadline for 
supplementation of an expert opinion; 
Miss. R. Civ. P. 26(f)(1) required supple- 
ments; no trial date had been set and the 
expert's supplemental affidavit did not 
change his original opinions. Young v. 
Meacham, 999 So. 2d 368 (Miss. 2008). 

Trial court's judgment in favor of a cor- 
poration was affirmed; the corporate ex- 
ecutives were not required to supplement 
their deposition testimony about the 
coporation's stock going public as the 
statements were truthful when made and 
no further questions were asked. Welsh v. 
Mounger, 883 So. 2d 46 (Miss. 2004). 

A supplemental response pertaining to 
an expert witness was timely, notwith- 
standing that it was delivered only five 
days before the resumption of trial after a 
continuance, where the expert witness 
was identified by the plaintiff several 
months before trial, the expert's opinion 
had been supplemented once before, and 
the defendant failed to show surprise or 
unfair prejudice caused by the timeliness 
of the final supplementation. Holladay v. 
Holladay, 776 So. 2d 662 (Miss. 2000). 

There was no violation of subsection (f) 
in a divorce proceeding where the wife 
identified a large credit card debt in her 
interrogatory responses, but did not sup- 
plement her responses to state when and 
why the debt was incurred; such informa- 
tion did not fall into any of the categories 
of information for which supplementation 
is required and the husband sought no 
further information. Keller v. Keller, 763 
So. 2d 902 (Miss. Ct. App. 2000). 



Where defense counsel in a medical 
malpractice action failed to notify plain- 
tiff's counsel of the status of a witness as 
an expert. or of her opinions until a mere 
seven days before trial, the court erred 
allowing the witness to testify. Coltharp v. 
Carnesale, 733 So. 2d 780 (Miss. 1999). 

The trial court did not abuse its discre- 
tion in striking the plaintiff's supplemen- 
tal responses to interrogatories as un- 
timely where she requested an extension 
of discovery 292 days after the deadline 
and two months after this motion was 
denied, she finally filed her supplemental 
responses. Thompson v. Patino, — So. 2d 
— , 1999 Miss. App. LEXIS 280 (Miss. Ct. 
App. May 18, 1999), reversed by, re- 
manded by 2000 Miss. LEXIS 91 (Miss. 
Apr. 20, 2000). 

In an eminent domain proceeding, the 
court properly refused to allow the un- 
timely submission of a supplemental re- 
port only six days before trial, even 
though the report did not contain radi- 
cally new information, since the admis- 
sion of the report would nevertheless have 
been prejudicial. Blanton v. Board of 
Suprvs., 720 So. 2d 190 (Miss. 1998). 

The defendant could not claim prejudice 
by an expert's testimony for the plaintiffs 
on the basis that the plaintiffs did not 
seasonably supplement its interrogatories 
with respect to the substance of the ex- 
pert's opinion where the defendant was 
afforded the opportunity to depose the 
expert but chose not to do so. Mississippi 
Valley Gas Co. v. Estate of Walker, 725 So. 
2d 139 (Miss. 1998). 

Although defendant failed to ade- 
quately supplement his response to inter- 
rogatories, there was no reversible error 
where plaintiff was unable to show any 
resulting prejudice. Terrain Enters., Inc. 
V. Mockbee, 654 So. 2d 1122 (Miss. 1995). 

Where medical malpractice plaintiffs 
failed to give adequate responses to dis- 
covery so that defendant would under- 
stand that an attack on propriety of per- 
forming hysterectomy was part of the 
claim against him, trial court did not err 
in refusing to grant instruction concern- 
ing defendant's alleged deviation from 
minimum standard of care in performing 
hysterectomy West v. Sanders Clinic for 
Women, 661 So. 2d 714 (Miss. 1995). 



156 



RULES OF CIVIL PROCEDURE 



Rule 26 



Permanent disability was a separate 
subject matter from causation, and plain- 
tiffs' supplemental answer to expert inter- 
rogatory was insufficient to put defendant 
on notice that extent of disability might be 
a part of expert's testimony; expert's opin- 
ion therefore should have been excluded. 
T.K. Stanley, Inc. v. Cason, 614 So. 2d 942 
(Miss. 1992). 

Chancellor did not err in allowing testi- 
mony of two witnesses whose names were 
not supplied to plaintiff in a timely fash- 
ion; there was no prejudice since individu- 
als were not expert witnesses, and plain- 
tiff had managed to have an investigator 
interview one of the witnesses. Eastover 
Bank for Sav. v. Hall, 587 So. 2d 266 (Miss. 
1991). 

Trial court erred in excluding testimony 
of plaintiff's expert as to matters in affi- 
davit, where defendant's counsel admitted 
she had known that doctor would be plain- 
tiff's expert since the time she had re- 
ceived his affidavit, and she had been in 
possession of it for three months prior to 
trial; accordingly, the requirement of sea- 
sonable supplementation of responses was 
met. Hudson v. Parvin, 582 So. 2d 403 
(Miss. 1991). 

Trial court did not err in allowing testi- 
mony of expert witness first disclosed in 
supplemental interrogatory responses ten 
calendar days before trial. Motorola Com- 
munications & Elecs., Inc. v. Wilkerson, 
555 So. 2d 713 (Miss. 1989). 

Plaintiff's expert should not have been 
allowed to testify, where his name was not 
provided to opposing counsel until four 
days before trial; moreover, no informa- 
tion was given regarding expert's testi- 
mony, which apparently came as a com- 
plete surprise to defense counsel, who first 
learned of plaintiff's broken neck and per- 
manent damage at the same time as the 



jury. Jones v. 

(Miss. 1987). 



Hatchett, 504 So. 2d 198 



Work product. 

DVD recording was not protected by 
work product because the supreme court 
was unpersuaded that the DVD recording 
of the subsequent confrontation repre- 
sented mental impressions, conclusions, 
opinions, or legal theories of an attorney 
or other representative of a party concern- 
ing the litigation. Miss. R. Civ. P. 26(b)(3). 
Furthermore, the "work-product" doctrine 
pertained to pretrial discovery, not admis- 
sibility, such that the circuit court abused 
its discretion in predicating its admissibil- 
ity determination thereon. Baker 
Donelson Bearman Caldwell & Berkowitz, 
PC. V. Seay, 42 So. 3d 474 (Miss. 2010). 

In a civil suit against a church admin- 
istration regarding allegations of sexual 
abuse by a priest, the church administra- 
tion was required to review minutes of its 
investigative committee and include in a 
privilege log all portions it claimed were 
protected by the work-product privilege of 
Miss. R. Civ. P. 26(b)(3). Roman Catholic 
Diocese v. Morrison, 905 So. 2d 1213 
(Miss. 2005). 

Attorney's memorandum to the office 
file and other attorneys noting a conver- 
sation with a third party was protected by 
the work product doctrine, and the crime- 
fraud exception did not apply, as there 
was no proof of either a crime or fraud. 
Hewes v. Langston, 848 So. 2d 800 (Miss. 
2003). 

Workers' compensation proceedings. 

This rule does not apply to proceedings 
before the Workers' Compensation Com- 
mission. Mid-Delta Home Health, Inc. v. 
Robertson, 749 So. 2d 379 (Miss. Ct. App. 
1999). 



RESEARCH REFERENCES 



ALR. Discovery of Deleted Email and 
Other Deleted Electronic Records. 27 
A.L.R.6th 565. 

Crime-fraud exception to work product 
privilege in Federal courts. 178 A.L.R. 
Fed. 87. 



Law Reviews — Baumer, Eminent Do- 
main: Should an Expert's Appraisal Re- 
port be Subject to Pretrial Discovery?, 67 
Miss. L.J. 801, Spring, 1998. 

Practice References. Bender's Forms 
of Discovery (Matthew Bender). 



157 



Rule 27 MISSISSIPPI COURT RULES 

Rule 27. Depositions before action or pending appeal. 

(a) Before action. 

(1) Petition. A person who desires to perpetuate his own testimony or that of 
another person regarding any matter that may be cognizable in any court of 
this state may file a verified petition in the circuit or chancery court in the 
county of the residence of any expected adverse party. The petition shall be 
entitled in the name of the petitioner and shall show: (1) that the petitioner 
expects to be a party to an action cognizable in a court of this state but is 
presently unable to bring it or cause it to be brought, (2) the subject matter of 
the expected action and his interest therein, (3) the facts which he desires to 
establish by the proposed testimony and his reasons for desiring to perpetuate 
it, (4) the names or a description of the persons he expects will be adverse 
parties and their addresses so far as known, and (5) the names and addresses 
of the persons to be examined and the substance of the testimony which he 
expects to elicit from each, and shall ask for an order authorizing the petitioner 
to take the depositions of the persons to be examined named in the petition, for 
the purpose of perpetuating their testimony 

(2) Notice and service. The petitioner shall thereafter serve a notice upon 
each person named in the petition as an expected adverse party, stating that 
the petitioner will apply to the court, at a time and place named therein, for the 
order described in the petition. At least twenty days before the date of hearing 
the notice shall be served in the same manner for service of summons; but if 
such service cannot with due diligence be made upon any expected adverse 
party named in the petition, the court may make such order as is just for 
service by publication or otherwise, and shall appoint, for persons not served 
in the manner provided by law, an attorney who shall represent them, and, in 
case they are not otherwise represented, shall cross-examine the deponent. 

(3) Order and examination. If the court is satisfied that the perpetuation of 
the testimony may prevent a failure or delay of justice, it shall make an order 
designating or describing the persons whose depositions may be taken and 
specifying the subject matter of the examination and whether the depositions 
shall be taken upon oral examination or written interrogatories. The deposi- 
tions may then be taken in accordance with these rules; and the court may 
make orders of the character provided for by Rule 34. For the purpose of 
applying these rules to depositions for perpetuating testimony, each reference 
therein to the court in which the action is pending shall be deemed to refer to 
the court in which the petition for such deposition was filed. 

(4) Use of deposition. If a deposition to perpetuate testimony is taken under 
these rules, it may be used in any action involving the same subject matter 
subsequently brought in a circuit, chancery or county court in accordance with 
Rule 32(a). 

(b) Pending appeal. If an appeal has been taken from a judgment of a court, 
or before the taking of an appeal if the time therefor has not expired, the court 
in which the judgment was rendered may allow the taking of the depositions 
of witnesses to perpetuate their testimony for use in the event of further 
proceedings in the court. In such case the party who desires to perpetuate the 
testimony may make a motion in the court for leave to take the depositions, 

158 



RULES OF CIVIL PROCEDURE Rule 28 

upon the same notice and service thereof as if the action were pending in the 
court. The motion shall show (1) the names and addresses of persons to be 
examined and the substance of the testimony which he expects to elicit from 
each; (2) the reasons for perpetuating their testimony. If the court finds that 
the perpetuation of the testimony is proper to avoid a failure or delay of justice, 
it may make an order allowing the depositions to be taken and may make 
orders of the character provided for by Rule 34, and thereupon the depositions 
may be taken and used in the same manner and under-the same conditions as 
are prescribed in these rules for depositions taken in actions pending in the 
court. 

(c) Perpetuation by action. This rule does not limit the power of a court to 
entertain an action to perpetuate testimony. 

COMMENT 

Miss. Code Ann. § 13-1-243 (1972) has See Pyle, Ott, Rumfelt, Mississippi Rules 

been included as subdivision (d) of of Discovery, 46 Miss. L.J. 681, 699-709 

M.R.C.R 27; otherwise, Rule 27 is identi- (1975). 
cal to Miss. Code Ann. § 13-1-227 (1972). 

JUDICIAL DECISIONS 

Applicability. circuit court erred in dismissing plaintiff's 

Procedure. post-dismissal complaint because the re- 



Applicability. 



cord supported a finding that the federal 



J r jV u T ui court's dismissal was based upon a "mat- 

insoiar as they may be applicable, pro- ^ ^ r » ^ rr ^- ^i 

eedures contemplated by this rule are ^"^ "{ f°™ "°V "^ ^'^'"f- a ™? .T 

available to either party in a bar disciplin- "^'"'^^y- ^ l"""^ "^ jurisdiction due to the 

ary matter for the taking of depositions of ^^?"''! °f ^ f^.^P'^^'^t-as its order 

parties or witnesses. Mississippi State t J^'^^J^" T\ ^^^ ^ ^ f: ., 

Bar V. Attorney L., 511 So. 2d 119 (Miss. P'^'"*'^^ ^f inadvertently found himself 

lQon\ ma procedural quagmire, but he made a 

good-faith effort to preserve his claim, at 
Procedure. no time envincing an intent to abandon 
In a case in which plaintiff filed a peti- his claim, and, accordingly, application of 
tion to perpetuate testimony in a circuit the savings statute, Miss. Code Ann. § 15- 
court, the matter was then removed to 1-69, to his post-dismissal complaint was 
federal court, wherein plaintiff sought dis- appropriate and consistent with the pur- 
missal, and plaintiff filed a complaint in poses of the statute because he filed the 
the circuit court raising the same claims complaint within one year of the federal 
against the same parties before the fed- court's dismissal. Crawford v. Morris 
eral court had dismissed the matter, the Transp., Inc., 990 So. 2d 162 (Miss. 2008). 

Rule 28. Persons before whom depositions may be taken. 

(a) Within the united states. Within the United States or within a territory 
or insular possession subject to the dominion of the United States, depositions 
shall be initiated by an oath or affirmation administered to the deponent by an 
officer authorized to administer oaths by the laws of the United States or of the 
place where the examination is held, or by a person specially appointed by the 
court in which the action is pending. 

159 



Rule 29 MISSISSIPPI COURT RULES 

(b) In foreign countries. In a foreign country, depositions may be taken: (1) 
on notice before a person authorized to administer oaths in the place in which 
the examination is held, either by the law thereof or by the law of the United 
States, or (2) before a person commissioned by the court, and a person so 
commissioned shall have the power by virtue of his commission to administer 
any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A 
commission or a letter rogatory shall be issued on application and notice and 
on terms that are just and appropriate. It is not requisite to the issuance of a 
commission or a letter rogatory that the taking of the deposition in any other 
manner is impracticable or inconvenient; and both a commission and a letter 
rogatory may be issued in proper cases. A notice or commission may designate 
the person before whom the deposition is to be taken either by name or 
descriptive title. A letter rogatory may be addressed To the Appropriate 
Authority in (here name the country). Evidence obtained in response to a letter 
rogatory need not be excluded merely for the reason that it is not a verbatim 
transcript or that the testimony was not taken under oath or for any similar 
departure from the requirements for depositions taken within the United 
States under these rules. 

(c) Disqualification for interest. No deposition shall be taken before a person 
who is a relative or employee or attorney or counsel of any of the parties, or is 
a relative or employee of such attorney or counsel, or is financially interested 
in the action. 

COMMENT 

Except for important modifications in administrator of the oath or affirmation is 

M.R.C.P. 28(a), this rule is identical to different from the stenographer, there is 

Miss. Code Ann. § 13-1-228 (1972); the no reason for the former to remain in 

modifications in 28(a) are necessitated by attendance during the taking of the depo- 

new provisions in M.R.C.P. 30 which pro- sition. The rule retains the power of the 

vide for the taking of testimony by tele- court to appoint specially a person capable 

phone and for recording testimony by of administering the oath which initiates 

other than stenographic methods, the deposition. See, Special Committee for 

M.R.C.P. 28(a) dispenses with the require- the Study of Discovery Abuse, Section of 

ment that an officer authorized to admin- Litigation, A.B.A., Report, at 7, 8 (1977); 

ister oaths be present during an entire also, Pyle, Ott, Rumfelt, Mississippi Rules 

deposition, It is sufficient under the rule if of Discovery, 46 Miss L.J. 681, 709-14 

the deposition is begun with the adminis- (1975) 
tration of the oath or affirmation. 

Even in those cases where the deposi- 
tion is taken by a stenographer, if the 

Rule 29. Stipulations regarding discovery procedure. 

Unless the court orders otherwise, the parties may by written stipulation (1) 
provide that depositions may be taken before any person, at any time or place, 
upon any notice, and in any manner and when so taken may be used like other 
depositions, and (2) modify the procedures provided by these rules for other 
methods of discovery, except that stipulations extending the time provided in 

160 



RULES OF CIVIL PROCEDURE Rule 30 

Rules 33, 34 and 36 for responses to discovery may be made only with the 
approval of the court. 

COMMENT 

Rule 29 is identical to Miss. Code Ann. Mississippi Rules of Discovery, 46 
§ 13-1-229 (1972). See Pyle, Ott, Rumfelt, Miss.L.J. 681, 714-15 (1975). 

Rule 30. Depositions upon oral examination. 

(a) When depositions may be taken. After commencement of the action, any 
party may take the testimony of any person, including a party, by deposition 
upon oral examination. Leave of court, granted with or without notice, must be 
obtained only if the plaintiff seeks to take a deposition prior to the expiration 
of thirty days after service of the summons upon any defendant, except that 
leave is not required (1) if a defendant has served a notice of taking deposition 
or otherwise sought discovery, or (2) if special notice is given under subsection 
(b)(2) of this rule. The attendance of witnesses may be compelled by subpoena. 
The deposition of a person confined in prison may be taken only by leave of 
court on such terms as the court prescribes. 

(b) Notice of examination: general requirements; special notice; non-steno- 
graphic recording; production of documents and things; deposition of organi- 
zation. 

(1) A party desiring to take the deposition of any person upon oral exami- 
nation shall give reasonable notice in writing to every other party to the action. 
The notice shall state the time and place for taking the deposition and the 
name and address of each person to be examined, if known, and, if the name 
is not known, a general description sufficient to identify him or the particular 
class or group to which he belongs. If a subpoena duces tecum is to be served 
on the person to be examined, the designation of the materials to be produced 
as set forth in the subpoena shall be attached to or included in the notice. A 
notice may provide for the taking of testimony by telephone. If necessary, 
however, to assure a full right of examination of any deponent, the court in 
which the action is pending may, on motion of any party, require that the 
deposition be taken in the presence of the deponent. 

(2) Leave of court is not required for the taking of a deposition by plaintiff 
if the notice: (A) states that the person to be examined is about to go out of the 
state and will be unavailable for examination unless his deposition is taken 
before expiration of the thirty-day period, and (B) sets forth facts to support the 
statement. The plaintiff's attorney shall sign the notice, and his signature 
constitutes a certification by him that to the best of his knowledge, informa- 
tion, and belief the statement and supporting facts are true. 

If a party shows that when he was served with notice under this subsection 
(b)(2) he was unable through the exercise of diligence to obtain counsel to 
represent him at the taking of the deposition, the deposition may not be used 
against him. 

(3) The court may for cause shown enlarge or shorten the time for taking the 
deposition. 

161 



Rule 30 MISSISSIPPI COURT RULES 

(4) The notice of deposition required under (1) of this subsection (b) may 
provide that the testimony be recorded by other than stenographic means, in 
which event the notice shall designate the manner of recording and preserving 
the deposition. A court may require that the deposition be taken by steno- 
graphic means if necessary to assure that the recording be accurate. A motion 
by a party for such an order shall be addressed to the court in which the action 
in pending; a motion by a witness for such an order may be addressed to the 
court in the district where the deposition is taken. 

(5) The notice to a party deponent may be accompanied by a request made 
in compliance with Rule 34 for the production of documents and tangible 
things at the taking of the deposition. The procedure of Rule 34 shall apply to 
the request. 

(6) A party may in his notice and in a subpoena name as the deponent a 
public or private corporation or a partnership or association or governmental 
agency and describe with reasonable particularity the matters on which 
examination is requested. In that event, the organization so named shall 
designate one or more officers, directors, or managing agents, or other persons 
who consent to testify on its behalf, and may set forth, for each person 
designated, the matters on which he will testify. A subpoena shall advise a 
non-party organization of its duty to make such a designation. The persons so 
designated shall testify as to matters known or reasonably available to the 
organization. This subsection (b)(6) does not preclude taking a deposition by 
any other procedure authorized in these rules. 

(7) For purposes of this Rule, and Rules 28(a), 37(a)(1), 37(b)(1), and 45(b), 
a deposition shall be deemed to be taken in the county where the deponent is 
physically present to answer questions propounded to him. 

(c) Exartiination and cross-examination; record of examination; objections. 
Examination and cross-examination of witnesses may proceed as permitted at 
the trial. The testimony of the witness shall be recorded either stenographi- 
cally or as provided in subsection (b)(4) of this rule. If requested by one of the 
parties, the testimony shall be transcribed upon the payment of the reasonable 
charges therefor. All objections made at the time of the examination to the 
qualifications of the person taking the deposition, or to the manner of taking it, 
or to the evidence presented, or to the conduct of any party, and any other 
objection to the proceedings, shall be noted upon the transcription or recording. 
Evidence objected to shall be taken subject to the objections. In lieu of 
participating in the oral examination, parties may serve written questions on 
the party taking the deposition, who shall propound them to the witness and 
see that the answers thereto are recorded verbatim. 

(d) Motion to terminate or limit examination. At any time during the taking 
of the deposition, on motion of a party or of the deponent and upon a showing 
that the examination is being conducted in bad faith or in such manner as 
unreasonably to annoy, embarrass, or oppress the deponent or party, the court 
in which the action is pending may order the officer conducting the examina- 
tion to cease forthwith from taking the deposition or may limit the scope and 
manner of the taking of the deposition as provided in Rule 26(d). If the order 

162 



RULES OF CIVIL PROCEDURE Rule 30 

made terminates the examination, it shall be resumed thereafter only upon the 
order of the court in which the action is pending. Upon demand of the objecting 
party or deponent, the taking of the deposition shall be suspended for the time 
necessary to make a motion for an order. Rule 37(a)(4) applies to the award of 
expenses incurred in relation to the motion. 

(e) Submission to witness; changes; signing. When the testimony is taken by 
stenographic means, or is recorded by other than stenographic means as 
provided in subsection (b)(4) of this rule, and if the trajiscription or recording 
thereof is to be used at any proceeding in the action, such transcription or 
recording shall be submitted to the witness for examination, unless such 
examination is waived by the witness and by the parties. Any changes in form 
or substance which the witness desires to make shall be entered upon the 
transcription or stated in a writing to accompany the recording, together with 
a statement of the reasons given by the witness for making them. Notice of 
such changes and reasons shall promptly be served upon all parties by the 
party taking the deposition. The transcription or recording shall then be 
affirmed in writing as correct by the witness, unless the parties by stipulation 
waive the affirmation. If the transcription or recording is not affirmed as 
correct by the witness within thirty days of its submission to him, the reasons 
for the refusal shall be stated under penalty of perjury on the transcription or 
in a writing to accompany the recording by the party desiring to use such 
transcription or recording. The transcription or recording may then be used 
fully as though affirmed in writing by the witness, unless on a motion to 
suppress under Rule 32(d)(4) the court holds that the reasons given for the 
refusal to affirm require rejection of the deposition in whole or in part. 

(f) Certification; exhibits; copies; notice of filing. 

(1) When a deposition is stenographically taken, the stenographic reporter 
shall certify, under penalty of perjury, on the transcript that the witness was 
sworn in his presence and that the transcript is a true record of the testimony 
given by the witness. When a deposition is recorded by other than stenographic 
means as provided in subsection 30(b)(4) of this Rule, and thereafter tran- 
scribed, the person transcribing it shall certify, under penalty of perjury, on the 
transcript that he heard the witness sworn on the recording and that the 
transcript is a correct writing of the recording. A deposition so certified shall be 
considered prima facie evidence of the testimony of the witness. 

(2) Documents and things produced for inspection during the examination 
of the witness, shall, upon the request of a party, be marked for identification 
and annexed to the deposition, and may be inspected and copied by any party. 
Whenever the person producing materials desires to retain the originals, he 
may substitute copies of the originals, or afford each party an opportunity to 
make copies thereof. In the event the original materials are retained by the 
person producing them, they shall be marked for identification and the person 
producing them shall afford each party the subsequent opportunity to compare 
any copy with the original. He shall also be required to retain the original 
materials for subsequent use in any proceeding in the same action. Any party 
may move for an order that the original be annexed to and returned with the 
deposition to the court, pending final disposition of the case. 

163 



Rule 30 



MISSISSIPPI COURT RULES 



(3) Upon payment of reasonable charges therefor, the stenographic reporter, 
or in the case of a deposition taken pursuant to subsection 30(b)(4) of this rule, 
the party taking the deposition shall furnish a copy of the deposition to any 
party or to the deponent. 

(4) If all or part of the deposition is filed with the court, the party making 
the filing shall give prompt notice thereof to all other parties. 

(g) Failure to attend or to serve subpoena; expenses. 

(1) If the party giving the notice of the taking of a deposition fails to attend 
and proceed therewith and another party attends in person or by attorney 
pursuant to the notice, the court may order the party giving the notice to pay 
to such other party the reasonable expenses incurred by him and his attorney 
in attending, including reasonable attorney's fees. 

(2) If the party giving the notice of the taking of a deposition of a witness 
fails to serve a subpoena upon him and the witness because of such failure does 
not attend, and if another party attends in person or by attorney because he 
expects the deposition of that witness to be taken, the court may order the 
party giving the notice to pay to such other party the reasonable expenses 
incurred by him and his attorney in attending, including reasonable attorney's 
fees. 

(h) Expenses generally not treated as court costs. No part of the expenses of 
taking depositions, other than the serving of subpoenas, shall be adjudged, 
assessed or taxed as court costs. (Amended effective March 1, 1989; July 1, 
1997.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective March 1, 1989, Rule 30 was 
amended to abrogate the requirement 
that the party taking a deposition out of 
state pay certain expenses of the other 
party incident thereto. 536-538 So. 2d 
XXV (West Miss. Gas. 1989). 



Effective July 1, 1997, Rule 30(b)(7) was 
amended to correct the reference to Rule 
45. — So. 2d — (West Miss. Cases). 

[Amended effective July 1, 1997.] 



COMMENT 



M.R.C.P. 30(a), (d), and (g) are identical 
to Miss. Code Ann. § 13-l-230(a), (d), and 
(g), respectively M.R.C.P. 30(b) is modi- 
fied to provide for the taking of testimony 
by telephone without court order. It is 
intended that the word "telephone" em- 
brace any other recognized form of tele- 
communications between distant points. 
The recipient of a notice calling for a 
deposition by telephone may apply to the 
court for an order requiring the noticing 
party to appear in the presence of the 
deponent for the taking of the deposition 
when physical confrontation is necessary 
for proper examination, to protect against 



coaching, or to permit the exchange and 
reading of documents. 

M.R.C.P. 30(b)(4) reverses the statutory 
predilection against non-stenographic re- 
cording of testimony and permits the 
party noticing a deposition to provide for 
such without court order; Miss. Code Ann. 
§ 13-l-230(b)(4) (1972) requires a court 
order for non-stenographic recordings. 

Electronic recording is now reliably de- 
veloped. A blanket requirement for live 
stenography may often entail unneces- 
sary expense. Moreover, in many in- 
stances, the parties simply wish to know 
what a particular witness will say; there 



164 



RULES OF CIVIL PROCEDURE 



Rule 30 



is no need for a transcript for trial. Accord- 
ingly, there is no basis for an automatic 
rule that requires transcription or com- 
pels the parties to apply to the court to lift 
that requirement. 

Under this rule, a party or witness 
aggrieved by the taking of a non-steno- 
graphic deposition can simply arrange for 
transcription at his own expense. In addi- 
tion, an application may be made by a 
party to the court in which the action is 
pending, or by a witness to that court or to 
the court in which the deposition is to be 
taken, to compel stenography if there is a 
basis to believe that accuracy requires it. 

M.R.C.P. 30(b)(7) resolves any ambigu- 
ity which might otherwise arise in the 
case of a telephonic deposition and pro- 
vides that a deposition is taken in the 
county where the deponent is physically 
present to answer questions propounded 
to him. The court in that county is there- 
fore the appropriate court for purposes of 
orders pursuant to Rules 37(a)(1) and 
37(b)(1), and an officer authorized to ad- 
minister oaths in that county or by the 
laws of that place may administer the 
oath to the deponent as provided in Rule 
28(a). 

The changes in M.R.C.P. 30(c) are re- 
quired to provide for the more informal 



methods of taking depositions permitted 
under M.R.C.P. 30(b). If a party does not 
desire to disclose the nature of his ques- 
tions to his adversary, he may put them to 
the witness by telephone, thereby obviat- 
ing the need .for the sealed envelope tech- 
nique. 

The changes in M.R.C.P. 30(e) are de- 
signed to improve the language in the rule 
and to provide for the authentication of a 
deposition taken by other than steno- 
graphic means as contemplated by 
M.R.C.P 30 (b)(4). 

The changes in M.R.C.P 30(g) are re- 
quired by the less formal manner pre- 
scribed by other rule changes for the tak- 
ing of depositions. The rule also clarifies 
procedures for the marking, copying, and 
retention of exhibits. Unless disputed by a 
participant in the deposition, the court 
should presume the correctness of the 
certified transcript; a dispute over the 
correctness of the transcript is to be 
treated as a dispute of fact. 

The preceding modifications of M.R.C.P 
30 were adapted from the Special Com- 
mittee for the Study of Discovery Abuse, 
Section of Litigation, A.B.A., Report, at 
9-17(1977). 

[Comment amended effective March 1, 
1989; July 1, 1997.] 



JUDICIAL DECISIONS 



Applicability. 

Non-stenographic depositions. 
Place of deposition. 
Preserving objections. 

Applicability. 

Insofar as they may be applicable, pro- 
cedures contemplated by this rule are 
available to either party in a bar disciplin- 
ary matter for the taking of depositions of 
parties or witnesses. Mississippi State 
Bar V. Attorney L., 511 So. 2d 119 (Miss. 
1987). 

Non-stenographic depositions. 

Trial courts must allow the use of video 
depositions at the discretion of the party 
taking the deposition without any require- 
ment of stipulation by the other party or 
prior court approval unless a deposition 
taken by stenographic means is necessary 
to assure the accuracy of the recording. 



Robert v. Colson, 729 So. 2d 1243 (Miss. 
1999). 

Place of deposition. 

Party seeking to take deposition has 
original prerogative of designating place, 
and if any other party objects, that party 
has burden of persuasion that designated 
place would result in undue hardship or 
expense; such a burden may seldom be 
carried by mere conclusory allegations, 
and questions regarding place of taking of 
deposition are committed to sound discre- 
tion of trial court. H & W Transf & 
Cartage Serv., Inc. v. Griffin, 511 So. 2d 
895 (Miss. 1987). 

Preserving objections. 

Counsel for plaintiff at deposition prop- 
erly preserved his objection to alleged 
hearsay statement, where parties stipu- 
lated that substantive objections would be 



165 



Rule 31 MISSISSIPPI COURT RULES 

reserved until trial. Moody v. RPM Pizza, 
Inc., 659 So. 2d 877 (Miss. 1995). 

Rule 31. Depositions upon written questions. 

(a) Serving questions; notice. After commencement of the action, any party 
may take the testimony of any person, including a party, by deposition upon 
written questions. The attendance of witnesses may be compelled by the use of 
subpoena as provided by law. The deposition of a person confined in prison may 
be taken only by leave of court on such terms as the court prescribes. 

A party desiring to take a deposition upon written questions shall serve them 
upon every other party with a notice stating (1) the name and address of the 
person who is to answer them, if known, and if the name is not known, a 
general description sufficient to identify him or the particular class or group to 
which he belongs, and (2) the name or descriptive title and address of the 
officer before whom the deposition is to be taken. A deposition upon written 
questions may be taken of a public or private corporation or a partnership or 
association or governmental agency in accordance with Rule 30(b)(6). 

Within thirty days after the notice and written questions are served, a party 
may serve cross questions upon all other parties. Within ten days after being 
served with cross questions, a party may serve redirect questions upon all 
other parties. Within ten days after being served with redirect questions, a 
party may serve recross questions upon all other parties. The court may for 
cause shown enlarge or shorten the time. 

(b) Officer to take responses and prepare record. A copy of the notice and 
copies of all questions served shall be delivered by the party taking the 
deposition to the officer designated in the notice, who shall proceed promptly, 
in the manner provided by Rule 30(c), (e), and (f), to take the testimony of the 
witness in response to the questions and to prepare, certify, and file or mail the 
deposition, attaching, thereto the copy of the notice and the questions received 
by him. 

COMMENT 

M.R.C. P. 31(a) is identical to Miss. Code Mississippi Rules of Discovery, 46 

Ann. § 13-l-231(a) (1972). However, the Miss.L.J. 681, 725-26 (1975); and Special 

rule differs from the statute by deleting all Committee for the Study of Discovery 

references to filing, as provided by Abuse, Section of Litigation, A.B.A., Re- 

M.R.C.P 5 and 30. See Pyle, Ott, Rumfelt, port, at 17 (1977). 

JUDICIAL DECISIONS 

Applicability. parties or witnesses. Mississippi State 

Illustrative cases. Bar v. Attorney L., 511 So. 2d 119 (Miss. 

1987). 
Applicability. 

Insofar as they may be applicable, pro- Illustrative cases. 
cedures contemplated by this rule are Wife failed to object under Miss. R. Civ. 

available to either party in a bar disciplin- P. 31 to the deposition questions or the 

ary matter for the taking of depositions of certification by the deposing officer with 

166 



RULES OF CIVIL PROCEDURE Rule 32 

reasonable promptness. Because the wife chancellor's admission of the deposition 

waived any objection to the deposition testimony into evidence. McCullough v. 

questions pursuant to Miss. R. Civ. P. 32, McCullough, 52 So. 3d 373 (Miss. Ct. App. 

the appellate court found no error in the 2009). 

Rule 32. Use of depositions in court proceedings. 

(a) Use of depositions. At the trial or upon the hearing of a motion of an 
interlocutory proceeding, any part or all of a deposition, so far as admissible 
under the rules of evidence applied as though the v^itness v^ere then present 
and testifying, may be used against any party who was present or represented 
at the taking of the deposition or who had reasonable notice thereof, in 
accordance with any of the following provisions: 

(1) Any deposition may be used by any party for the purpose of contradicting 
or impeaching the testimony of deponent as a witness, or for any other purpose 
permitted by the Mississippi Rules of Evidence. 

(2) The deposition of a party or of anyone who at the time of taking the 
deposition was an officer, director, or managing agent, or a person designated 
under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private 
corporation, partnership or association or governmental agency which is a 
party, may be used by an adverse party for any purpose. 

(3) The deposition of a witness, whether or not a party, may be used by any 
party for any purpose if the court finds: (A) that the witness is dead; or (B) that 
the witness is at a greater distance than one hundred miles from the place of 
trial or hearing, or is out of the state, unless it appears that the absence of the 
witness was procured by the party offering the deposition; or (C) that the 
witness is unable to attend or testify because of age, illness, infirmity, or 
imprisonment; or (D) that the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or (E) that the witness is 
a medical doctor or (F) upon application and notice, that such exceptional 
circumstances exist as to make it desirable, in the interest of justice and with 
due regard to the importance of presenting the testimony of witnesses orally in 
open court, to allow the deposition to be so used. 

(4) If only part of a deposition is offered in evidence by a party, an adverse 
party may require him to introduce any other part which ought in fairness to 
be considered with the part introduced, and any party may introduce any other 
parts. 

Substitution of parties does not affect the right to use depositions previously 
taken; and, when an action in any court has been dismissed and another action 
involving the same subject matter is afterward brought between the same 
parties or their representatives or successors in interest, all depositions 
lawfully taken and duly filed in the former action may be used in the latter as 
if originally taken therefor. A deposition previously taken may also be used as 
permitted by the Mississippi Rules of Evidence. 

(b) Objections to admissibility. Subject to the provisions of Rule 28(b) and 
subsection (d)(3) of this rule, objection may be made at the trial or hearing to 
receive in evidence any deposition or part thereof for any reason which would 

167 



Rule 32 MISSISSIPPI COURT RULES 

require the exclusion of the evidence if the witness were then present and 
testifying. 

(c) [Abrogated]. 

(d) Effect of errors and irregularities in depositions. 

(1) As to Notice. All errors and irregularities in the notice for taking a 
deposition are waived unless written objection is promptly served upon the 
party giving the notice. 

(2) As to Disqualification of Officer. Objection to taking a deposition because 
of disqualification of the officer before whom it is to be taken is waived unless 
made before the taking of the deposition begins or as soon thereafter as the 
disqualification becomes known or could be discovered with reasonable dili- 
gence. 

(3) As to Taking of Deposition. 

(A) Objections to the competency of a witness or to the competency, 
relevancy or materiality of testimony are not waived by failure to make them 
before or during the taking of the deposition, unless the ground of the objection 
is one which might have been obviated or removed if presented at that time. 

(B) Errors and irregularities occurring at the oral examination in the 
manner of taking the deposition, in the form of the questions or answers, in the 
oath or affirmation, or in the conduct of the parties, and errors of any kind 
which might be obviated, removed, or cured if promptly presented, are waived 
unless seasonable objection thereof is made at the taking of the deposition. 

(C) Objections to the form of written questions submitted under Rule 31 are 
waived unless served in writing upon the party propounding them within the 
time allowed for serving the succeeding cross or other questions and within five 
days after service of the last questions authorized. 

(4) As to Completion and Return of Deposition. Errors and irregularities in 
the manner in which the testimony is transcribed or the deposition is prepared, 
signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with 
by the officer under Rules 30 and 31 are waived unless a motion to suppress the 
deposition or some part thereof is made with reasonable promptness after such 
defect is, or with due diligence might have been, ascertained. (Amended 
effective January 10, 1986; March 1, 1989; October 21, 1999.) 

ADVISORY COMMITTEE HISTORICAL NOTE 

Effective March 1, 1989, Rule 32 was Mississippi Rules of Evidence; and Rule 
amended by providing that the deposition 32(c) [Effect of Taking or Using Deposi- 
of a medical doctor may be used by any tions] was abrogated. 478-481 So. 2d 
party for any purpose. 536-538 So. 2d XXV XXIII (West Miss. Gas. 1986). 
(West Miss. Cas. 1989). 

Effective January 10, 1986, Rule 32 was 
amended by deleting references to the 



168 



RULES OF CIVIL PROCEDURE 



Rule 32 



COMMENT 



Rule 32 as originally adopted was based 
on Miss. Code Ann. § 13-1-232 (1972). See 
Pyle, Ott, Rumfelt, Mississippi Rules of 
Discovery, 46 Miss.L.J. 681, 726-35 
(1975). 

Subsection (a) has been amended to 
reflect the admissibility of depositions, 
apart from Rule 32, as permitted by the 
Mississippi Rules of Evidence. 

Mississippi Rule of Evidence 
801(d)(1)(A) permits the introduction for 
substantive purposes of a prior inconsis- 
tent statement made by a witness while 
testifying under oath in a judicial proceed- 
ing or deposition. See 4 J. Weinstein & M. 
Berger, Weinstein's Evidence 

f 801(D)(01)[01] (1985). 

Mississippi Rule of Evidence 804(b)(1) 
permits the introduction of the deposition 
testimony of an unavailable witness. 
Though the deposition of the unavailable 
witness need not have been taken in the 
same proceeding as that in which it is 
offered, the party against whom the depo- 
sition is offered, including a predecessor 
in interest in civil actions, must have had 
both an opportunity and a similar motive 
for cross-examination. See 4 J. Weinstein 
& M. Berger, Weinstein's Evidence 
f 801(D)(01)[01] (1985). 



Subsection (c) of the Rule has been 
deleted. The original purpose of subsec- 
tion (c) was to avoid in certain situations 
application of the common law rule that 
prohibited a party from impeaching his 
own witness. See C. McCormick Hand- 
book on the Lav/ of Evidence § 38 (C. 
Cleary 3d ed. 1984). Subsection (c) pre- 
cluded the application of the so-called 
voucher rule to a party by the mere act of 
taking the deposition of a witness. Subsec- 
tion (c) Seemed to apply the voucher rule 
to a party who introduced a deposition of a 
witness for any purpose other than con- 
tradicting or impeaching the deponent. To 
this extent, subsection (c) was inconsis- 
tent with Rule 43(b)(4) as originally en- 
acted. See Dunbar, Discovery-Rules 26-34, 
36 and 37, 52 Miss.L.J. 119, 136-37 (1982). 

The adoption of Mississippi Rule of Ev- 
idence 607 has rendered subsection (c) 
superfluous and negated any contention 
that a party introducing a deposition 
might be precluded from impeaching the 
deponent. Mississippi Rule of Evidence 
607 provides that any party, including the 
calling party, may impeach the credibility 
of any witness. 

[Amended effective January 10, 1986.] 



JUDICIAL DECISIONS 



In general. 
Construction. 
Applicability. 
Illustrative cases. 

In general. 

Trial court did not err by excluding the 
deposition testimony of plaintiffs' expert 
to be used at trial as the trial court ex- 
cluded the testimony on the defense objec- 
tion that the expert was not qualified. 
Poole V. Avara, 908 So. 2d 716 (Miss. 
2005). 

It is not necessary either for a witness 
to be unavailable or that he must first 
testify at trial for a deposition to be ad- 
missible as evidence. Keller v. Keller, 763 
So. 2d 902 (Miss. Ct. App. 2000). 

Construction. 

Whether testimony of witness in inves- 
tigatory hearing against attorney was a 



deposition or earlier sworn testimony was 
a question of form over substance, and did 
not hinder introduction of the testimony. 
Emil V. Mississippi Bar, 690 So. 2d 301 
(Miss. 1997). 

Applicability. 

Insofar as they may be applicable, pro- 
cedures contemplated by this rule are 
available to either party in a bar disciplin- 
ary matter for the taking of depositions of 
parties or witnesses. Mississippi State 
Bar V. Attorney L., 511 So. 2d 119 (Miss. 
1987). 

Illustrative cases. 

Wife failed to object under Miss. R. Civ. 
P. 31 to the deposition questions or the 
certification by the deposing officer with 
reasonable promptness. Because the wife 
waived any objection to the deposition 



169 



Rule 33 



MISSISSIPPI COURT RULES 



questions pursuant to Miss. R. Civ. P. 32, 
the appellate court found no error in the 
chancellor's admission of the deposition 
testimony into evidence. McCullough v. 
McCullough, 52 So. 3d 373 (Miss. Ct. App. 
2009). 

Granting of a directed verdict in favor of 
a physician provider, a physician, and a 
medical center, in a claim for medical 
malpractice was appropriate pursuant to 
Miss. R. Civ. P. 32(a) because, although 
the circuit court erred in refusing to allow 
the patient to play an edited video depo- 
sition of a doctor, the error was legally 
harmless since the patient was permitted 
to examine the doctor and then impeach 
him with his videotaped deposition state- 
ments on cross-examination if it was in- 
consistent with his live testimony. Hartel 
V. Pruett, 998 So. 2d 979 (Miss. 2008). 

Where a son sought to set aside a war- 
ranty deed that transferred property from 
the son's mother to a daughter, the case 
was properly dismissed for failure to pros- 
ecute because, inter alia, (1) there was a 
significant delay during the litigation, and 
(2) the daughter was prejudiced because 
of their mother's intervening death since 
the purpose of the mother's deposition 
was not to conduct discovery or elicit tes- 
timony for trial. Cox v Cox, 976 So. 2d 869 
(Miss. 2008). 

Finding in favor of the patient in his 
medical malpractice action was improper 
pursuant to Miss. R. Civ. P 32(a)(3)(C) 
because his mother-in-law's deposition 
should not have been excluded solely on 
the basis of drug use. Blake v. Clein, 903 
So. 2d 710 (Miss. 2005). 

In a dispute over a construction con- 
tract, a trial court did not err in admitting 
an expert's deposition into evidence be- 



cause the expert was unavailable due to 
the fact that the expert was out of state 
during part of the trial; moreover, the 
evidence showed that a builder had an 
opportunity to question the expert about 
an existing report at the time of the depo- 
sition. DiMa Homes, Inc. v. Stuart, 873 So. 
2d 140 (Miss. Ct. App. 2004). 

The trial court committed reversible er- 
ror when it allowed the defendant in a 
personal injury action to introduce a video 
deposition of a witness who did not appear 
at trial; although the video deposition was 
obtained after the defendant learned that 
the witness had had a heart attack after 
the incident at issue, the clerk's docket 
sheet did not reflect proof of service of a 
subpoena on the witness, there was no 
evidence of the health of the witness at 
the time of trial, and there was no sugges- 
tion that any effort was made to deter- 
mine the health of the witness at the time 
of trial. Robinson v. Lee, 821 So. 2d 129 
(Miss. Ct. App. 2000). 

Injured patient should have been per- 
mitted to enter portions of nurse's deposi- 
tion into evidence without calling nurse as 
a witness, even though nurse was avail- 
able to be called as a witness, since nurse 
was an employee of defendant hospital 
and statements were categorized as ad- 
missions by a party-opponent under 
M.R.E. Rule 801(d)(2)(D), which was in- 
corporated by general reference into 
M.R.C.P Rule 32(a)(1). McMillan v. King, 
557 So. 2d 519 (Miss. 1990). 

In absence of prejudice, failure to pro- 
cure presence of surgeon at trial, and use 
of his deposition instead, did not consti- 
tute reversible error. Mutual Life Ins. Co. 
V. Estate of Wesson, 517 So. 2d 521 (Miss. 
1987), cert, denied, 486 U.S. 1043, 108 S. 
Ct. 2035, 100 L. Ed. 2d 620 (1988). 



Rule 33. Interrogatories to parties. 

(a) Availability; procedures for use. Any party may serve as a matter of right 
upon any other party v^ritten interrogatories not to exceed thirty in number to 
be answered by the party served or, if the party served is a public or private 
corporation or a partnership or association or governmental agency, by any 
officer or agent, v^ho shall furnish such information as is available to the party. 
Each interrogatory shall consist of a single question. Interrogatories may, 
v^ithout leave of court, be served upon the plaintiff after commencement of the 
action and upon any other party v^ith or after service of the summons and 



170 



RULES OF CIVIL PROCEDURE Rule 33 

complaint upon that party. Leave of court, to be granted upon a showing of 
necessity, shall be required to serve in excess of thirty interrogatories. 

(b) Answers and Objections. 

(1) Each interrogatory shall be answered separately and fully in writing 
under oath, unless it is objected to, in which event the objecting party shall 
state the reasons for the objection and shall answer to the extent the 
interrogatory is not objectionable. 

(2) The answers are to be signed by the person making them, and the 
objections signed by the attorney making them. 

(3) The party upon whom the interrogatories have been served shall serve a 
copy of the answers, and objections if any, within thirty days after the service 
of the interrogatories, except that a defendant may serve answers or objections 
within forty-five days after service of the summons and complaint upon that 
defendant. The court may allow a shorter or longer time. 

(4) All grounds for an objection to an interrogatory shall be stated with 
specificity. Any ground not stated in a timely objection is waived unless the 
party's failure to object is excused by the court for good cause shown. 

(5) The party submitting the interrogatories may move for an order under 
Rule 37 (a) with respect to any objection to or other failure to answer an 
interrogatory. 

(c) Scope; use at trial. Interrogatories may relate to any matters which can 
be inquired into under Rule 26(b), and the answers may be used to the extent 
permitted by the rules of evidence. 

An interrogatory otherwise proper is not necessarily objectionable merely 
because an answer to the interrogatory involves an opinion or contention that 
relates to fact or the application of law to fact, but the court may order that 
such an interrogatory need not be answered until after designated discovery 
has been completed or until a pre-trial conference or other later time. 

(d) Option to produce business records. Where the answer to an interroga- 
tory may be derived or ascertained from the business records of the party upon 
whom the interrogatory has been served or from an examination, audit, or 
inspection of such business records, or from a compilation, abstract, or 
summary based thereon, and the burden of deriving or ascertaining the 
answer is substantially the same for the party serving the interrogatory as for 
the party served, it is a sufficient answer to such interrogatory to specify the 
records from which the answer may be derived or ascertained and to afford to 
the party serving the interrogatory reasonable opportunity to examine, audit, 
or inspect such records and to make copies, compilations, abstracts, or 
summaries. The specification provided shall include sufficient detail to permit 
the interrogating party to identify readily the individual documents from 
which the answer may be ascertained. (Amended effective April 13, 2000.) 

ADVISORY COMMITTEE HISTORICAL NOTE 

Effective April 13, 2000, Rule 33 was clearly state the ground for objection to 
amended to require parties to produce all each interrogatory. So. 2d (West Miss.Cas. 
nonobjectionable information and to 2000). 

171 



Rule 33 



MISSISSIPPI COURT RULES 



COMMENT 



M.R.C.P. 33(a) places a numerical limi- 
tation on the number of interrogatories 
that may be posed as a matter of right. 

The thirty interrogatories permitted as 
of right are to be computed by counting 
each distinct question as one of the thirty, 
even if labeled a sub-part, subsection, 
threshold question, or the like. In areas 
well suited to non-abusive exploration by 
interrogatory, such as inquiries into the 
names and locations of witnesses, or the 
existence, location, and custodians of 
documents or physical evidence, greater 
leniency may be appropriate in construing 
several questions as one interrogatory. 

MRCP 33(b)(1) emphasizes the duty of 
the responding party to provide full re- 
sponses to the extent not objectionable. 
MRCP 33(b)(4) requires that the grounds 
for any objection be stated with specificity. 
Answers may not be provided subject to 
an objection. Instead, the responding 
party should quote or otherwise identify 
the part of the interrogatory that is objec- 
tionable, state the grounds for the objec- 
tion, and respond in full to the remainder. 
If, for example, an interrogatory seeking 



information about 30 facilities is deemed 
objectionable, but an interrogatory seek- 
ing information about 10 facilities would 
not have been objectionable, the interrog- 
atory should be answered Vv'ith respect to 
the 10 facilities, and the grounds for ob- 
jection to providing the information with 
respect to the remaining facilities should 
be stated specifically. 

The final sentence of M.R.C.P 33(d) is 
designed to eliminate the mechanical re- 
sponse of an invitation to "look at all my 
documents." The rule makes it clear that 
the responding party has the duty to spec- 
ify precisely, by category and location, 
which documents apply to which question. 
Further, such answers being given under 
oath are intended to eliminate subsequent 
evasive use of additional documents at 
trial on issues confronted by the interrog- 
atory request. See Special Committee for 
the Study of Discovery Abuse, Section of 
Litigation, A.B.A., Report, at 18-21 (1977); 
Pyle, Ott, Rumfelt, Mississippi Rules of 
Discovery, 46 Miss.L.J. 681, 735 42 (1975). 

[Comment amended effective April 13, 
2000.] 



JUDICIAL DECISIONS 



Generally. 

Failure to disclose witnesses. 
Failure to respond. 
Medical malpractice. 
Waiver of objections. 

Generally. 

Medical malpractice complaint was 
properly dismissed with prejudice be- 
cause, when plaintiffs (1) did not submit 
answers to interrogatories until 435 days 
past the deadline in Miss. R. Civ. P. 
33(b)(3), (2) did not begin discovery until 
almost a year past the deadline in Miss. 
Unif. Cir. & Cty. R. 4.04(A), and (3) did not 
reply to the motion to dismiss within ten 
days, under Miss. Unif. Cir. & Cty. R. 
4.03(2), it was unnecessary to show plain- 
tiffs' contumacious conduct, prejudice 
from plaintiffs' unreasonable delay was 
presumed, even though defendants did 
not show witnesses' fading memories and 
no aggravating factors were present, and 



lesser sanctions would not suffice, since 
the case was not an isolated incident of 
one missed deadline or a short, delayed 
response. Holder v. Orange Grove Med. 
Specialties, PA., 54 So. 3d 192 (Miss. 
2010). 

Order by a trial court that granted the 
individuals' motion to compel a doctor to 
respond to a set of interrogatories was 
reversed; the state supreme court held 
that the trial court abused its discretion in 
granting the order as one interrogatory 
alone had more than 1000 subparts and 
the interrogatories were unduly burden- 
some, and oppressive as many were con- 
fusing, and therefore, ambiguous. More- 
over, the individuals had not obtained 
leave of court to propound more than 30 
interrogatories as required by Miss. R. 
Civ. P. 33(a). Haley v. Harbin, 933 So. 2d 
261 (Miss. 2005). 

Where an invitee's responses to a mo- 
tion to compel did not comply with Miss. 



172 



RULES OF CIVIL PROCEDURE 



Rule 34 



R. Civ. P. 33, the invitee sought late dis- 
covery in violation of Miss. Unif. Cir. & 
County Ct. Prac. R. 4.04, and did not show 
good cause for failing to prosecute after 
two notices of dismissal under Miss. R. 
Civ. P. 41(d), the trial court properly dis- 
missed the lawsuit and denied a motion 
for reconsideration. Guidry v. Pine Hills 
Country Club, Inc., 858 So. 2d 196 (Miss. 
Ct. App. 2003). 

Failure to disclose witnesses. 

Since witness's testimony was elicited 
by plaintiff's cross-examination, any ob- 
jection based upon failure to provide wit- 
ness's name in answers to interrogatories 
was waived. Maryland Cas. Co. v. City of 
Jackson, 493 So. 2d 955 (Miss. 1986). 

Failure to respond. 

Dismissal of the patient's medical-neg- 
ligence action under Miss. R. Civ. P. 41(b) 
was inappropriate because there was no 
clear record of actual prejudice caused to 
the physician or medical center, or even 
that of presumptive prejudice; thus, the 
trial court erred in its decision to dismiss 
the patient's case with prejudice. Holder v. 



Orange Grove Med. Specialties, P. A., 54 
So. 3d 244 (Miss. Ct. App. 2010), reversed 
by 54 So. 3d 192, 2010 Miss. LEXIS 640 
(Miss. 2010). 

Medical malpractice. 

Administratrix was not precluded from 
maintaining that a nursing home owner 
and its operator were liable for the negli- 
gence of individual nursing home staff 
members because an answer to an inter- 
rogatory made it clear that the adminis- 
tratrix was pursuing two theories of neg- 
ligence, which were not inconsistent with 
one another. The administratrix never ad- 
mitted through her answer to the inter- 
rogatory at issue or otherwise that no 
caregivers breached the standard of care. 
Estate of Guillotte v. Delta Health Group, 
Inc., 5 So. 3d 393 (Miss. 2009). 

Waiver of objections. 

Since defendant did not object to plain- 
tiff's discovery requests within the allot- 
ted time, defendant's objections were 
waived. Taylor Mach. Works v. Great Am. 
Surplus Lines Ins. Co., 635 So. 2d 1357 
(Miss. 1994). 



Rule 34. Production of documents and things and entry upon land for 
inspection and other purposes. 

(a) Scope. Any party may serve on any other party a request (1) to produce 
and permit the party making the request, or someone acting on his behalf, to 
inspect and copy, any designated documents (including writings, drav^ings, 
graphs, charts, photographs, phono-records, and other data compilations from 
which information can be obtained, translated, if necessary, by the respondent 
through detection devices into reasonably useable form), or to inspect and copy, 
test, or sample any tangible things which constitute or contain matters within 
the scope of Rule 26(b) and which are in the possession, custody, or control of 
the party upon whom the request is served; or (2) to permit entry upon 
designated land or other property in the possession or control of the party upon 
whom the request is served for the purpose of inspection and measuring, 
surveying, photographing, testing, or sampling the property or any designated 
object or operation thereon, within the scope of Rule 26 (b). 

(b) Procedure. The request may, without leave of court, be served upon the 
plaintiff after commencement of the action and upon any other party with or 
after service of the summons and complaint upon that party. The request shall 
set forth the items to be inspected either by individual item or by category, and 
describe each item and category with reasonable particularity. The request 
shall specify a reasonable time, place, and manner of making the inspection 
and performing the related acts. The party upon whom the request is served 



173 



Rule 34 



MISSISSIPPI COURT RULES 



shall serve a written response within thirty days after the service of the 
request, except that a defendant may serve a response within forty-five days 
after service of the summons and complaint upon that defendant. The court 
may allow a shorter or longer time. The response shall state, with respect to 
each item or category, that inspection and related activities will be permitted 
as requested, unless the request is objected to, in which event the reasons for 
objection shall be stated. If objection is made to part of an item or category, the 
part shall be specified. The party submitting the request may move for an 
order under Rule 37(a) with respect to any objection to or other failure to 
respond to the request or any part thereof, or any failure to permit inspection 
as requested. 

When producing documents, the producing party shall produce them as they 
are kept in the usual course of business or shall organize and label them to 
correspond with the categories in the request that call for their production. 

(c) Persons not parties. This rule does not preclude an independent action 
against a person not a party for production of documents and things and 
permission to enter upon land. 

COMMENT 



M.R.C.P. 34(a) and (c) are identical to 
Miss. Code Ann. §§ 13-1-234 (a) and (c) 
(1972). Subdivision (b) of the rule differs 
from subdivision (b) of the statute in that 
the words "and complaint" are added after 
the word "summons" in the first sentences 
of the first and second paragraphs, and a 
new third paragraph is added to the rule. 
The former addition conforms to M.R.C.R 
4(a)(2) (copy of complaint to be served 
with summons); the latter tracks the rec- 
ommendation of the Special Committee 
for the Study of Discovery, Abuse, Section 
of Litigation, A.B.A., Report, at 21-23 
(1977). 

The new paragraph, prescribing the 
manner of document production, is in- 
tended to deter deliberate attempts by a 



producing party to burden discovery with 
volume or disarray or deliberately mixing 
critical documents with others in an effort 
to obscure significance. 

Generally, the most convenient and 
least burdensome method of producing 
documents would entail production in the 
order in which the documents are actually 
kept in the usual course of business, so 
that there is an internal logic reflecting 
business use. If this method is not elected, 
then the producing party may organize 
his paper production in accordance with 
the categories specified in the request. See 
also Pyle, Ott, Rumfelt, Mississippi Rules 
of Discovery, 46 Miss.L.J. 681, 764-83 
(1975). 



JUDICIAL DECISIONS 



Construction. 

Dismissal. 

Photographs. 

Construction. 

If objection is made to part of an item or 
category, the part shall be specified, and 
"general objections" applicable to each and 
every interrogatory or request for produc- 
tion are clearly outside the bounds of this 



rule; if a party wishes to lodge an objection 
to a question or request submitted by the 
opposition, that party must make such 
objection to that specific question or re- 
quest. Ford Motor Co. v Tennin, 960 So. 
2d 379 (Miss. 2007). 

This rule does not require party receiv- 
ing a discovery request to deliver re- 
quested materials to opposing party, 
merely to make such materials available 



174 



RULES OF CIVIL PROCEDURE Rule 35 

for inspection. Harrison v. Mississippi able, the ordering of a new trial after a 

Bar, 637 So. 2d 204 (Miss. 1994). unanimous jury verdict for a vehicle man- 

^. . , ufacturer, based on a perceived violation 
Dismissal. r- - i i,- i, i j 

T^. . 1 f. ,. r. J. . 01 court orders which were never placed on 

Dismissal oi action for discovery mis- , , r j- \.- ^i 

, , V ^ J 1 record, was an abuse of discretion; the 
conduct was proper where requested doc- r- ^ - • i - j • i i 

, , • J- J manufacturer violated a single order con- 

umentation regarding revenues and ex- • ^i ^- r r- ^i , • • 

penses was not produced despite court cernmg the time frame for the submission 

orders by employee who was alleging im- ,^^,^°'^^r./ T n ^^^"^'^^^itT^T. 
proper t'erminat'ion of his employment, \%ll^^ ^oZ " "' ' 
and the willfulness and bad faith of the '^^y/^^^iss- ^^^^^; ,, , , 
employee was clearly demonstrated where Photographs should not have been ad- 
he refused to answer interrogatories and "^'^^J^ into evidence in condemnation pro- 
to produce documents for well over one ^^^^^^^ ^^^^? ^^^^ ^^.^^^ ^^^ disclosed 
year, in the face of at least two court Pursuant to both specific request and 
orders. Smith v Tougaloo College, 805 So. ^^^^^ ^^^^^ compelling discovery; remand 
2d 633 (Miss. Ct. App. 2002). ™^ required since court could not say 

that introduction of the photographs could 

Photographs. not have adversely affected integrity of 

While the trial court's frustration with the verdict. State Highway Comm'n v. 

the discovery process was understand- Jones, 649 So. 2d 201 (Miss. 1995). 

Rule 35. Physical and mental examinations of persons. 

(a) Order for examination. When the mental or physical condition (including 
the blood group) of a party or of a person in the custody or under the legal 
control of a party is in controversy, the court in which the action is pending may 
order the party to submit to a physical or mental examination by a suitably 
licensed or certified examiner or to produce for examination the person in the 
party's custody or legal control. The order may be made only on motion for good 
cause shown and upon notice to the person to be examined and to all parties 
and shall specify the time, place, manner, conditions, and scope of the 
examination and the person or persons by whom it is to be made. A party or 
person may not be required to travel an unreasonable distance for an 
examination. The party requesting the examination shall pay the examiner 
and shall advance all necessary expenses to be incurred by the party or person 
in complying with the order. 

(b)(1) Report of examiner If requested by the party against whom an order 
is made under Rule 35(a) or the person examined, the party causing the 
examination to be made shall deliver to the requesting party a copy of the 
detailed written report of the examiner setting out the examiner's findings, 
including results of all tests made, diagnoses and conclusions, together with 
like reports of all earlier examinations of the same condition. After delivery the 
party causing the examination shall be entitled upon request to receive from 
the party against whom the order is made a like report of any examination, 
previously or thereafter made, of the same condition unless, in the case of a 
report of examination of a person not a party, the party shows that the party 
is unable to obtain it. The court on motion may make an order against a party 
requiring delivery of a report on such terms as are just, and if an examiner fails 
or refuses to make a report the court may exclude the examiner's testimony if 
offered at trial. 

175 



Rule 35 



MISSISSIPPI COURT RULES 



(2) By requesting and obtaining a report of the examination so ordered or by 
taking the deposition of the examiner, the party examined waives any privilege 
the party may have in that action or any other involving the same controversy, 
regarding the testimony of every other person who has examined or may 
thereafter examine the party in respect of the same mental or physical 
condition. 

(3) This subdivision applies to examinations made by agreement of the 
parties, unless the agreement expressly provides otherwise. This subdivision 
does not preclude discovery of a report of an examiner or the taking of a 
deposition of the examiner in accordance with the provisions of any other rule. 

(c) Limited applicability to actions under Title 93 of the Mississippi Code of 
1972. This rule does not apply to actions under Title 93 of the Mississippi Code 
of 1972, except in the discretion of the Chancery Judge. (Adopted effective 
January 16, 2003.) 

JUDICIAL DECISIONS 



In general. 

Denial of motion to compel appropriate. 

In general. 

Chancery court did not err by refusing 
to order the husband to undergo a mental 
evaluation under Miss. R. Civ. P. 35(a) 
before awarding him unsupervised visita- 
tion; although the wife cited various inci- 
dents, the record did not support her con- 
tention that the husband had harmed 
their minor child in the past or that he 
would have presented an immediate dan- 
ger to her health and safety in the future. 
LeBlanc v Andrews, 931 So. 2d 683 (Miss. 
Ct. App. 2006). 



Denial of motion to compel appropri- 
ate. 

In the client's tort action against the 
attorney and law firm, given the dearth of 
Mississippi caselaw on Miss. R. Civ. R 35, 
rendering the issue one of first impression 
for the supreme court, along with the 
limited nature of the record with respect 
to the issue (only the motion and subse- 
quent order), the circuit court did not 
abuse its discretion in denying the law 
firm's motion to compel physical and men- 
tal examination of the client. Baker 
Donelson Bearman Caldwell «& Berkowitz, 
RC. V Seay, 42 So. 3d 474 (Miss. 2010). 



ADVISORY COMMITTEE HISTORICAL NOTE 



Effective January 16, 2003, Rule 35 was 
adopted to allow a court to order a physi- 



cal or mental examination of a person for 
good cause on motion. 



COMMENT 



Rule 35(a)(1) is modeled, in general, 
after Fed. R. Civ P. 35. The purpose of 
Rule 35(a)(1) is to allow a court to order a 
physical or mental examination of a per- 
son for good cause on motion. Previously, 
the omission in the Mississippi Rules of 
Civil Procedure of a counterpart to Fed- 
eral Rule 35 was held to preclude a court 
from ordering an examination under any 
circumstances. See Swan v. I. P. Inc., 613 
So. 2d 846 (Miss. 1993). 



The order may be made only upon good 
cause and is limited to cases in which the 
condition of the party or person to be 
examined is in controversy. For a discus- 
sion of the showing required, see Wright & 
Miller, Federal Practice and Procedure, 
Civil, § 2234.1 (1994). Although some 
states allow examinations under Rule 35 
without an order of the court, Mississippi 
Rule 35, like the federal counterpart, re- 
quires such an order, and, generally, the 



176 



RULES OF CIVIL PROCEDURE Rule 36 

choice of physicians is left to the party Practice and Procedure, Civil, § 2234.2 

seeking the examination. Addressing fed- (1994). 

eral practice, Wright & Miller have said: Rule 35(c) provides that in divorce, child 

"The usual attitude is that the moving custody, and other actions under Title 93 

party has no absolute right to the choice of of the Mississippi Code of 1972, examina- 

the physician, but that when no serious tions are entirely within the discretion of 

objection arises, it is probably best for the the Chancery Judge. 

court to appoint the doctor of the moving [Adoptive effective, January 16, 2003.] 

party's choice." Wright & Miller, Federal 

RESEARCH REFERENCES 

Law Reviews — Mississippi's Adop- Taming an Elephant: A Closer Look at 
tion of Rule 35 Independent Medical Ex- Mass Tort Screening and the Impact of 
aminations: A Whole New Can of Worms, Mississippi Tort Reforms, 26 Miss. C. L. 
23 Miss. C. L. Rev. 41, Fall, 2003. Rev. 253, 2006/2007. 

Now Open for Business: The Transfor- 
mation of Mississippi's Legal Climate, 24 
Miss. C. L. Rev. 393, Spring, 2005. 

Rule 36. Requests for admission. 

(a) Request for admission. A party may serve upon any other party a v^^ritten 
request for the admission, for purposes of the pending action only, of the truth 
of any matters v^ithin the scope of Rule 26(b) set forth in the request that relate 
to statements or opinions of fact or of the application of law to fact, including 
the genuineness of any documents described in the request. Copies of docu- 
ments shall be served with the request unless they have been or are otherwise 
furnished or made available for inspection and copying. The request may, 
without leave of court, be served upon the plaintiff after commencement of the 
action and upon any other party with or after service of the summons upon 
that party. 

Each matter of which an admission is requested shall be separately set forth. 
The matter is admitted unless, within thirty days after service of the request, 
or within such shorter or longer time as the court may allow, the party to whom 
the request is directed serves upon the party requesting the admission a 
written answer or objection addressed to the matter, signed by the party or by 
his attorney, but, unless the court shortens the time, a defendant shall not be 
required to serve answers or objections before the expiration of forty-five days 
after service of the summons upon him. If objection is made, the reasons 
therefor shall be stated. The answer shall specifically deny the matter or set 
forth in detail the reasons why the answering party cannot truthfully admit or 
deny the matter. A denial shall fairly meet the substance of the requested 
admission, and when good faith requires that a party qualify his answer or 
deny only a part of the matter of which an admission is requested, he shall 
specify so much of it as is true and qualify or deny the remainder. An 
answering party may not give lack of information or knowledge as a reason for 
failure to admit or deny unless he states that he has made reasonable inquiry 
and that the information known or readily obtainable by him is insufficient to 
enable him to admit or deny. A party who considers that a matter of which an 

177 



Rule 36 MISSISSIPPI COURT RULES 

admission has been requested presents a genuine issue for trial may not, on 
that ground alone, object to the request; he may, subject to Rule 37(c), deny the 
matter or set forth reasons why he cannot admit or deny it. 

The party who has requested the admissions may move to determine the 
sufficiency of the answers or objections. Unless the court determines that an 
objection is justified, it shall order that an answer be served. If the court 
determines that an answer does not comply with the requirements of this 
section, it may order either that the matter is admitted or that an amended 
answer be served. The court may, in lieu of these orders, determine that final 
disposition of the request be made at a pre-trial conference or at a designated 
time prior to trial. Rule 37(a)(4) applies to the award of expenses incurred in 
relation to the motion. 

(b) Effect of admission. Any matter admitted under this rule is conclusively 
established unless the court on motion permits withdrawal or amendment of 
the admission. Subject to the provisions governing amendment of a pre-trial 
order, the court may permit withdrawal or amendment when the presentation 
of the merits of the action will be subserved thereby and the party who 
obtained the admission fails to satisfy the court that withdrawal or amend- 
ment will prejudice him in maintaining his action or defense on the merits. Any 
admission made by a party under this rule is for the purpose of the pending 
action only and is not an admission by him for any other purpose nor may it be 
used against him in any other proceeding. 

COMMENT 

Rule 36 is identical to Miss. Code Ann. Mississippi Rules of Discovery, 46 
§ 13-1-236 (1972). See Pyle, Ott, Rumfelt, Miss.L.J. 681, 748-62 (1975). 

JUDICIAL DECISIONS 

In general. R. Civ. R 36. Canadian Nat'1/Ill. Cent. 

Construction. R.R. v. Hall, 953 So. 2d 1084 (Miss. 2007). 

Conclusiveness. Order by a trial court granting the indi- 

Deemed admission. viduals' motion to compel a doctor to re- 

^ .. . J '. spond to 250 requests for admissions was 

r allure to admit. ^ j^u7^ ^uu 

reversed; the state supreme court held 

lime to respond. ^^^^ ^^^ ^^,^^1 ^^^^^ ^^^ abused its discre- 

Withdrawal or amendment. tion in granting the order, finding the 

requests, requiring the doctor to respond 

In general. ^q rnore than 1000 questions, excessive in 

Where an employee was mounting a number, unduly burdensome, and oppres- 

moving locomotive when a foot slipped sive in violation of Miss. R. Civ. R 36. 

due to mud, causing the employee to fall Haley v. Harbin, 933 So. 2d 261 (Miss. 

and sustain serious leg injuries, the em- 2005). 

ployed sued the railroad for his injuries Where defendants failed to respond to 

under the Federal Employer's Liability plaintiff's requests for admissions in a 

Act, 45 U.S. C. § 51; the employee's admis- proper legal format after being ordered to 

sion at trial that the employee was spec- do so by the trial court following plaintiff's 

ulating as to whether employee's boots motion to compel responses, the trial court 

contained the slippery substance was not did not abuse its discretion in ordering 

a judicial admission for purposes of Miss, that the responses be deemed admitted. 

178 



I 



RULES OF CIVIL PROCEDURE 



Rule 36 



Prime Rx, LLC v. McKendree, Inc., 917 So. 
2d 791 (Miss. 2005). 

Defendant school district denied plain- 
tiff student's request to admit that "sexual 
contact" had occurred between her and 
two male students; the trial court did not 
err in allowing school board members to 
testify about their disciplining of the stu- 
dents based on the principal's assessment 
that some sexual contact had occurred, as 
that court's determination of what remedy 
was warranted given the differences be- 
tween the responses to the requests for 
admission and the testimony had to be 
viewed in a discretionary light and the 
court's decision was entitled to deference, 
as it was the trier of fact and its decision 
took into consideration the differences 
when it weighed the credibility of the 
school board members' testimony. T.K. v. 
Simpson County Sch. Dist., 846 So. 2d 312 
(Miss. Ct. App. 2003). 

The fact that answers to requests for 
admission, when compared with the testi- 
mony of other witnesses at trial, might 
raise doubts about the credibility of the 
answering party is not a reason to reject 
their evidentiary value; thus, regardless 
of testimony given at trial, answers to 
requests for admission are admissible as 
evidence. Keller v. Keller, 763 So. 2d 902 
(Miss. Ct. App. 2000). 

Construction. 

Rule was meant to provide, and should 
provide, an authoritative manner of pro- 
cedure; where trial court made a ruling 
within its authority under the Rule, the 
attorney's affidavit could not be used to 
negate the admissions, even though the 
affidavit could be viewed as contradictory. 
DeBlanc v. Stancil, 814 So. 2d 796 (Miss. 
2002). 

This rule is to be enforced according to 
its terms, and facts set forth in request for 
admissions were therefore taken as ad- 
mitted, where defendant filed no response 
or objection to request, and failed to offer 
any explanation or excuse as to why he 
could not have responded. Educational 
Placement Services v. Wilson, 487 So. 2d 
1316 (Miss. 1986). 

Purpose of this rule is to bind party 
making the admission, not party request- 
ing it. Shell Oil Co. v. Murrah, 493 So. 2d 
1274 (Miss. 1986). 



Defendants' timely filed motion to stay 
the requirement that they respond to 
plaintiffs' request for admissions was 
equivalent to a motion for an extension of 
time within which to respond, and the 
motion operated to prevent matters set 
forth in request from being deemed admit- 
ted. Schmidt v. City of Jackson, 494 So. 2d 
348 (Miss. 19861 

Conclusiveness. 

In a divorce proceeding, where the hus- 
band failed to answer the wife's requests 
for admissions, and they were deemed 
admitted, it was not error to deny the 
wife's motion to alter or amend judgment 
in regard to the weight given to the ad- 
missions, because the admissions were 
taken into consideration, but they were 
not conclusive, in and of themselves, of the 
ultimate issue. Kumar v. Kumar, 976 So. 
2d 957 (Miss. Ct. App. 2008). 

Conclusiveness of matters deemed ad- 
mitted, due to defendant's failure to file a 
timely response, was not established. 
Skipworth v. Rabun, 704 So. 2d 1008 
(Miss. 1996). 

Deemed admission. 

Because each element of legal malprac- 
tice was fulfilled, including both proxi- 
mate cause and the amount of damages, 
by the failure to answer or deny requests 
for admission, and because Miss. R. Civ. P. 
36 was self-executing and did not differ- 
entiate matters that would not be deemed 
admitted, admissions were properly used 
as a basis for granting summary judgment 
and for entering an award of damages of 
$2,000,000, jointly and severally, against 
a law firm and individual lawyers. Byrd v. 
Bowie, 992 So. 2d 1202 (Miss. Ct. App. 
2008). 

Summary judgment was properly 
awarded to a contractor in a subcontrac- 
tor's action for nonpayment where the 
subcontractor had waited to file its re- 
sponses to requests for admissions and its 
motion to withdraw the deemed admitted 
requests for admissions until after the 
contractor had moved for summary judg- 
ment; the trial court determined that the 
contractor would be prejudiced if the ad- 
missions were allowed to be withdrawn. 
Triangle Constr. Co. v. Foshee Constr. Co., 
976 So. 2d 978 (Miss. Ct. App. 2008). 



179 



Rule 36 



MISSISSIPPI COURT RULES 



In a tort suit filed against a nursing 
home and its administrators following the 
death of a patient, the estate failed to 
provide sufficient responses to a request 
for admissions concerning the standard of 
care; under Miss. R. Civ. P. 36, the deemed 
admissions established that none of the 
caregivers deviated from the standard of 
care in treating the patient, and therefore 
summary judgment was entered in favor 
of the caregivers. Estate of Finley v. Bev- 
erly Health & Rehab. Servs., 933 So. 2d 
1026 (Miss. Ct. App. 2006). 

Requests for admission did not violate 
the Rule as the requests clearly applied 
the legal standard of care to the facts of 
the case and the husband was aware that 
the doctor had made discovery requests. 
Cole V. Buckner, 819 So. 2d 527 (Miss. 
2002). 

The court properly deemed a request for 
admissions admitted for lack of timeliness 
pursuant to subsection (a) where there 
was a five-month delay before the defen- 
dants responded to the request for admis- 
sions and they did not object to the re- 
quest for admissions, request withdrawal 
or amendment, or seek from the court any 
extension of time for responding. Deblanc 
V Stancil, — So. 2d — , 2000 Miss. App. 
LEXIS 453 (Miss. Ct. App. Sept. 26, 2000), 
opinion withdrawn by, substituted opinion 
at 2001 Miss. App. LEXIS 39 (Miss. Ct. 
App. Jan. 23, 2001). 

Failure to admit. 

M.R.C.R Rule 37(c) did not contemplate 
sanctions where party denied requests for 
admissions which were, in effect, an accu- 
sation of arson, and therefore trial court 
did not err in failing to award sanctions 
for alleged discovery violations. Cooper v. 
State Farm Fire & Casualty Co., 568 So. 
2d 687 (Miss. 1990). 

Time to respond. 

Grant of summary judgment against 
the child and parents in their medical 
malpractice action against the doctors, 
medical center, and clinic, was appropri- 
ate pursuant to Miss. R. Civ. P. 36(b) 
because the conduct of the child and par- 
ents' counsel after his illness had resolved 
was insufficient to merit withdrawal of 
the deemed admissions. Langley v. Miles, 
956 So. 2d 970 (Miss. Ct. App. 2006), writ 



of certiorari denied by 957 So. 2d 1004, 
2007 Miss. LEXIS 305 (Miss. 2007). 

Notwithstanding that the defendant 
failed to timely respond to the plaintiff's 
requests for admission in an action to set 
aside two deeds from the plaintiff to the 
defendants, remand was necessary to de- 
termine the issue of whether the plaintiff" 
intended to deed her property to the de- 
fendants as this was a genuine issue of 
material fact that went directly to the 
merits of the case, and to pursue the 
answer to the question would not serve 
any prejudice upon the plaintiff. Deblanc 
V. Stancil, — So. 2d — , 2001 Miss. App. 
LEXIS 39 (Miss. Ct. App. Jan. 23, 2001), 
reversed by 814 So. 2d 796, 2002 Miss. 
LEXIS 95 (Miss. 2002). 

Withdrawal or amendment. 

In a child custody modification case, a 
trial court did not err by failing to deem a 
mother's requests for admission admitted 
since a father filed a motion to amend his 
responses, and the decision to grant such 
was in the trial court's discretion. 
Giannaris v. Giannaris, 962 So. 2d 574 
(Miss. Ct. App. 2006), reversed by, re- 
manded in part by 960 So. 2d 462, 2007 
Miss. LEXIS 399 (Miss. 2007). 

Where the lawyer, a defendant in a 
malpractice case, did not respond to plain- 
tiff's request for admissions for over nine 
months, the trial court did not abuse its 
discretion in refusing to allow the lawyer 
to withdraw his admissions, since (1) he 
never sought an extension of time to re- 
spond to the request; (2) he had no legal 
justification for his delay in responding; 
and (3) his dilatory response had preju- 
diced the plaintiff by delaying his case. 
Earwood v. Reeves, 798 So. 2d 508 (Miss. 
2001). 

Trial court erred in allowing defendant 
on oral motion to withdraw admissions 
and file responses out of time, where there 
was no record of good and sufficient rea- 
son offered by defendant and if argument 
was that defendant was financially unable 
to defend himself, this was not a justifi- 
able excuse. Skipworth v. Rabun, 568 So. 
2d 289 (Miss. 1990). 

Chancellor properly held that defen- 
dants' Request for Admissions would be 
deemed admitted, where plaintiffs filed 
their response eleven days late, and failed 



180 



RULES OF CIVIL PROCEDURE Rule 37 

to move for withdrawal or amendment of rule. Martin v. Simmons, 571 So. 2d 254 
admissions under subdivision (b) of this (Miss. 1990). 

Rule 37. Failure to make or cooperate in discovery: sanctions. 

(a) Motion for order compelling discovery. A party^ upon reasonable notice to 
other parties and all persons affected thereby, may apply for an order 
compelling discovery as follow^s: 

(1) Appropriate court. An application for an order may be made to the court 
in v^hich the action is pending. 

(2) Motion. If a deponent fails to ansv^er a question propounded or submit- 
ted under Rules 30 or 31, or a corporation or other entity fails to make a 
designation under Rules 30(b)(6) or 31(a), or a party fails to ansvs^er an 
interrogatory submitted under Rule 33, or if a party, in response to a request 
for inspection submitted under Rule 34, fails to respond that inspection will be 
permitted as requested or fails to permit inspection as requested, the discov- 
ering party may move for an order compelling an answer, or a designation, or 
an order compelling inspection in accordance with the request. When taking a 
deposition on oral examination, the proponent of the question may complete or 
adjourn the examination before he applies for an order. 

If the court denies the motion in whole or in part, it may make such 
protective order as it would have been empowered to make on a motion made 
pursuant to Rule 26(d). 

(3) Evasive or incomplete answer For purposes of this section, an evasive or 
incomplete answer is to be treated as a failure to answer. 

(4) Award of expenses of motion. If the motion is granted, the court shall, 
after opportunity for hearing, require the party or deponent whose conduct 
necessitated the motion or the party or attorney advising such conduct or both 
of them to pay to the moving party the reasonable expenses incurred in 
obtaining the order, including attorney's fees, unless the court finds that the 
opposition to the motion was substantially justified or that other circum- 
stances make an award of expenses unjust. 

If the motion is denied, the court shall, after opportunity for hearing, require 
the moving party of the attorney advising the motion or both of them to pay to 
the party or deponent who opposed the motion the reasonable expenses 
incurred in opposing the motion, including attorney's fees, unless the court 
finds that the making of the motion was substantially justified or that other 
circumstances make an award of expense unjust. 

If the motion is granted in part and denied in part, the court may apportion 
the reasonable expenses incurred in relation to the motion among the parties 
and persons in a just manner. 

(b) Failure to comply with order 

(1) Sanctions by Court. If a deponent fails to be sworn or to answer a 
question after being directed to do so by the court, the failure may be 
considered a contempt of court. 

(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, 
director, or managing agent of a party or a person designated under Rules 

181 



Rule 37 MISSISSIPPI COURT RULES 

30(b)(6) or 31(a) to testify in behalf of a party fails to obey an order to provide 
or permit discovery, including an order made under subsection (a) of this rule, 
the court in which the action is pending may make such orders in regard to the 
failure as are just, and among others the following: 

(A) an order that the matters regarding which the order was made or any 
other designated facts shall be taken to be established for the purposes of the 
action in accordance with the claim of the party obtaining the order; 

(B) an order refusing to allow the disobedient party to support or oppose 
designated claims or defenses, or prohibiting him from introducing designated 
matters in evidence; 

(C) an order striking out pleadings or parts thereof, or staying further 
proceedings until the order is obeyed, or dismissing the action or proceeding or 
any part thereof, or rendering a judgment by default against the disobedient 
party; 

(D) in lieu of any of the foregoing orders or in addition thereto, an order 
treating as a contempt of court the failure to obey any orders. 

In lieu of any of the foregoing orders or in addition, thereto, the court shall 
require the party failing to obey the order or the attorney advising him or both 
to pay the reasonable expenses, including attorney's fees, caused by the failure, 
unless the court finds that the failure was substantially justified or that other 
circumstances make an award of expenses unjust. 

(c) Expenses on failure to admit. If a party fails to admit the genuineness of 
any document or the truth of any matter as requested under Rule 36, and if the 
party requesting the admissions thereafter proves the genuineness of the 
document or the truth of the matter, he may apply to the court for an order 
requiring the other party to pay him the reasonable expenses incurred in 
making that proof, including reasonable attorney's fees. The court shall make 
the order unless it finds that (1) the request was held objectionable under Rule 
36(a), or (2) the admission sought was of no substantial importance, or (3) the 
party failing to admit had reasonable ground to believe that he might prevail 
on the matter, or (4) there was other good reason for the failure to admit. 

(d) Failure of party to attend at own deposition or serve answers to interrog- 
atories or respond to request for inspection. If a party or an officer, director, or 
managing agent of a party or a person designated under Rules 30(b)(6) or 31(a) 
to testify on behalf of a party fails (1) to appear before the officer who is to take 
his deposition, after being served with a proper notice, or (2) to serve answers 
or objections to interrogatories submitted under Rule 33, after proper service 
of interrogatories, or (3) to serve a written response to a request for inspection 
submitted under Rule 34, after proper service of the request, the court in which 
the action is pending on motion may make such orders in regard to the failure 
as are just, and among others it may take any action authorized under 
subsections (A), (B), and (C) of subsection (b)(2) of this rule. In lieu of any order 
or in addition thereto, the court shall require the party failing to act or the 
attorney advising him or both to pay the reasonable expenses, including 
attorney's fees, caused by the failure, unless the court finds that the failure was 
substantially justified or that other circumstances make an award of expenses 
unjust. 

182 



RULES OF CIVIL PROCEDURE 



Rule 37 



The failure to act described in this subsection may not be excused on the 
ground that the discovery sought is objectionable unless the party failing to act 
has applied for a protective order under Rule 26(d). 

(e) Additional sanctions. In addition to the application of those sanctions, 
specified in Rule 26(d) and other provisions of this rule, the court may impose 
upon any party or counsel such sanctions as may be just, including the 
payment of reasonable expenses and attorneys' fees, if any party or counsel (i) 
fails without good cause to cooperate in the framing of an appropriate 
discovery plan by agreement under Rule 26(c), or (ii) otherwise abuses the 
discovery process in seeking, making or resisting discovery 

COMMENT 



M.R.C.P. 37 contains a new subdivision 
(e) which does not appear in Miss. Code 
Ann. § 13-1-237 (1972). 

The statutory rule requires that each 
failure to respond to a discovery request 
be dealt with by a separate motion; the 
successful result of the first motion is 
usually an order to comply with the dis- 
covery request. Sanctions customarily are 
not imposed until after there has been a 
refusal to comply with a second order; 
moreover, under the statute there are no 
sanctions directed against a party who 
seeks unnecessary discovery. M.R.C.R 
37(e) gives greater flexibility to the trial 
court in the form of a general grant of 
power which would enable it to deal sum- 
marily with discovery abuses, whenever 
and however the abuse is brought to the 
attention of the court. For example, for the 



failure of a party to have made proper 
discovery, or for the misuse of the various 
discovery vehicles, the court may, at the 
conclusion of the case, impose monetary 
penalties according to the unnecessary 
expense to which the adverse party was 
put. It is significant that Rule 37(e) does 
not enumerate the sanctions available to 
the court; courts should have considerable 
latitude in fashioning sanctions suitable 
for particular applications. But See: 
Karenina by Vronsky v. Presley, 526 So. 2d 
518(Miss.l988). 

MRCP 37(e) was adapted from the Spe- 
cial Committee for the Study of Discovery 
Abuse, Section of Litigation, A.B.A., Re- 
port, at 23-25 (1972). See also Pyle, Ott, 
Rumfelt, Mississippi Rules of Discovery, 
46 Miss. L. J. 681, 764-83 (1975). 

[Amended effective February 1, 1990.] 



JUDICIAL DECISIONS 



In general. 

Construction. 

Applicability. 

Attorney's fees. 

Dismissal. 

Expenses. 

Preclusion. 

Requirements. 

Sanctions available. 

Sanctions properly denied. 

Setting aside answer. 

In general. 

Chancellor did not err in denying a 
husband's motion to compel a wife's re- 
sponses to interrogatories in a divorce 
case as the husband did not give reason- 



able notice to the wife of the motion, as 
required by Miss. R. Civ P. 37(a), in that 
the husband did not file his motion until 
less than one business day prior to the 
hearing and after the trial court had al- 
ready rescheduled the hearing. Moreover, 
the husband failed to show that he was 
prejudiced by the wife's untimely re- 
sponses. Vaughn v. Vaughn, 56 So. 3d 
1283 (Miss. Ct. App. 2011). 

Where an employee sued the railroad 
for injuries sustained while mounting a 
moving locomotive, the trial court did not 
err by allowing an expert to testify regard- 
ing reasons why the major railroads were 
amending their safety rules and to refer to 
statistical information; the subject matter 



183 



Rule 37 



MISSISSIPPI COURT RULES 



contained in the expert report included 
the subject matter testified to at trial, and 
there was no discovery violation. Cana- 
dian Nat'1/Ill. Cent. R.R. v. Hall, 953 So. 
2d 1084 (Miss. 2007). 

While the trial court's frustration with 
the discovery process was understand- 
able, the ordering of a new trial after a 
unanimous jury verdict for a vehicle man- 
ufacturer, based on a perceived violation 
of court orders which were never placed on 
record, was an abuse of discretion; the 
manufacturer violated a single order con- 
cerning the time frame for the submission 
of documents which it submitted two days 
late. Ford Motor Co. v. Tennin, 960 So. 2d 
379 (Miss. 2007). 

Trial judge did not err by denying the 
passenger a mistrial for the driver's dis- 
covery violations under Miss. R. Civ. P. 37 
as there was no evidence that the driver's 
interrogatory response was intended to 
mislead opposing counsel, and the driver 
clearly did not exhibit a pattern of such, 
and there was no indication that the pas- 
senger was prejudiced by the driver's in- 
complete answer to Interrogatory No. 10; 
there was no indication of how the passen- 
ger's trial strategy would have changed in 
the event the driver had divulged the 
kissing episode at an earlier stage in the 
litigation process. Payne v. Whitten, — So. 
2d — 2006 Miss. LEXIS 620 (Miss. Oct. 
26, 2006), opinion withdrawn by, substi- 
tuted opinion at 948 So. 2d 427, 2007 
Miss. LEXIS 38 (Miss. 2007). 

Where defendants failed to respond to 
plaintiff's requests for admissions in a 
proper legal format after being ordered to 
do so by the trial court following plaintiff's 
motion to compel responses, the trial court 
did not abuse its discretion in ordering 
that the responses be deemed admitted 
even though Miss. R. Civ. P. 37 allowed for 
a lesser sanction as plaintiff propounded 
requests for admissions and Miss. R. Civ. 
P. 36 provided for a specific sanction for 
the failure to respond. Prime Rx, LLC v. 
McKendree, Inc., 917 So. 2d 791 (Miss. 
2005). 

Trial court's suspension of monetary 
sanctions against defendant school dis- 
trict's attorneys for a discovery violation 
was not an abuse of discretion: (1) there 
was not an unequivocal showing that the 



district or its attorneys intended to de- 
ceive, nor was it clear where the fault in 
failing to disclose arose; and (2) as the 
discovery violation went to breach of duty 
and proximate cause, and plaintiff stu- 
dent could not have prevailed had she 
proven breach of duty and proximate 
cause, because no causation in fact was 
shown, she was not prejudiced by the 
discovery violation. TK. v. Simpson 
County Sch. Dist., 846 So. 2d 312 (Miss. 
Ct. App. 2003). 

Trial court did not err in excluding evi- 
dence not identified during discovery, pur- 
suant to Miss. R. Civ. P 37(b)(2)(B); a 
witness testified about census results, but 
an objection to the introduction of the 
witness's written findings was properly 
sustained because the findings were not 
furnished during discovery and there was 
no showing that the exclusion of the evi- 
dence had any prejudicial effect. 
Prestridge v. City of Petal, 841 So. 2d 1048 
(Miss. 2003). 

In a divorce case, the chancellor cured 
any error that might have occurred in 
denying the husband's motion to compel 
when the chancellor allowed the husband 
leniency in questioning the wife at trial; 
therefore, the chancellor's denial of the 
husband's motion to compel did not war- 
rant an interlocutory appeal. Boutwell v. 
Boutwell, 829 So. 2d 1216 (Miss. 2002). 

Where there was no violation of discov- 
ery rules or pre-trial court order, circuit 
judge was without authority to impose 
sanctions against plaintiff for scheduling 
deposition for a date two days before Pre- 
Trial Conference, after plaintiff had re- 
quested that Pre-Trial Conference be set. 
Jones V. Wiese, 652 So. 2d 175 (Miss. 
1995). 

A motion for sanctions against a party 
unable to comply is not per se an abuse of 
discovery. Read v. Southern Pine Elec. 
Power Ass'n, 515 So. 2d 916 (Miss. 1987). 

Construction. 

Imposition of a $10,000 sanction 
against the tire company was improper 
where the trial court effectively held the 
tire company in constructive criminal con- 
tempt and the company therefore had the 
right to present its defense regarding con- 
tempt. Under Miss. R. Civ. P. 37 and the 
inherent power to protect the integrity of 



184 



RULES OF CIVIL PROCEDURE 



Rule 37 



its process, the trial court had the broad 
authority to impose sanctions for discov- 
ery violations and violations of its orders; 
however, a purely punitive fine could be 
imposed only after the offending party be 
held in contempt. Cooper Tire & Rubber 
Co. v. McGill, 890 So. 2d 859 (Miss. 2004). 
Subdivision (b)(2) of this rule did not 
totally control trial court's authority to 
impose sanctions, and $200 fine against 
plaintiff's counsel, and not plaintiff, for 
counsel's failure to notify court of his 
planned absence was authorized under 
subdivision (e). Cunningham v. Mitchell, 
549 So. 2d 955 (Miss. 1989). 

Applicability. 

Under Miss. R. Civ P. 37(c), the chan- 
cellor abused his discretion by not impos- 
ing sanctions against the wife for admit- 
ted perjury and destruction of evidence as 
the wife resisted discovery; the wife re- 
sisted discovery by admitted lying under 
oath about staying the night at another 
man's hours and having sexual inter- 
course with him, and she lied about when 
her sexual relationship began and inten- 
tionally destroyed her personal computer 
immediately after her March 8 deposition. 
Jones V. Jones, 995 So. 2d 706 (Miss. 
2008). 

With respect to a casino customer who 
was injured when a security guard col- 
lided with her, a trial court did not abuse 
its discretion in denying a motion to com- 
pel production of copies of the casino's 
rules for handling customer injuries be- 
cause the production request did not in- 
clude what the customer actually sought, 
which was security manuals. Smith v. 
Ameristar Casino Vicksburg, Inc., 991 So. 
2d 1228 (Miss. Ct. App. 2008), writ of 
certiorari denied by 997 So. 2d 924, 2008 
Miss. LEXIS 504 (Miss. 2008). 

Finding that the passenger was 30 per- 
cent at fault for an accident was improper 
pursuant to Miss. R. Civ. P. 37(e), where 
the driver never elaborated on his contrib- 
utory negligence claim during discovery 
and instead waited until he was testif3ring 
at trial before asserting that the passen- 
ger was partially negligent because the 
two were kissing. That testimony resulted 
in a discovery violation. Payne v. Whitten, 
948 So. 2d 431 (Miss. Ct. App. 2006), 



reversed by 2006 Miss. LEXIS 620 (Miss. 
Oct. 26, 2006). 

Where the heirs' motion for extension of 
time to designate an expert was filed two 
months after the deadline for such desig- 
nation and more than a month after the 
filing by defendants of one or more mo- 
tions for summary judgment, the trial 
court granted defendants summary judg- 
ment, as the heirs were unable to make 
out a prima facie case of medical malprac- 
tice without a medical expert. Bowie v. 
Montfort Jones Mem'l Hosp., 861 So. 2d 
1037 (Miss. 2003). 

Correct standard for awarding sanc- 
tions for a vexatiously overbroad sub- 
poena is that under M.R.C.P. Rule 45, not 
Rules 26 or 37. SLM v. Clinton Pub. Sch. 
Dist., 677 So. 2d 737 (Miss. 1996). 

Deponent in a deposition taken in Mis- 
sissippi for use in an out-of-state case 
could not be compelled to respond to ques- 
tions which he had declined to answer 
pursuant to privilege provided by other 
state's law, but not available under Mis- 
sissippi law. Barnes v. A Confidential 
Party, 628 So. 2d 283 (Miss. 1993). 

Attorney's fees. 

Because the trial court's finding of mul- 
tiple, intentional discovery violations was 
erroneous, so too was its award of attor- 
ney fees and expenses in amount in excess 
of $200,000 to plaintiffs (presumably un- 
der Miss. R. Civ. P.37(e)), although plain- 
tiffs were owed some amount of reason- 
able attorney fees and expenses; the court 
should have assessed the reasonable ex- 
penses incurred by plaintiffs caused by 
defendant's compliance with the court's 
ruling two days later than ordered. Ford 
Motor Co. V. Tennin, 960 So. 2d 379 (Miss. 
2007). 

Trial court erred by den3ring plaintiffs 
attorney's fees under subdivision (a)(4) of 
this rule, where plaintiffs succeeded on 
their motion to compel discovery. Willard 
V. Paracelsus Health Care Corp., 681 So. 
2d 539 (Miss. 1996). 

Dismissal. 

Affirmation of a default judgment in 
favor of the property owners was appro- 
priate because the city's discovery re- 
sponse was false and despite an offer from 
the trial court, the city declined to offer 



185 



Rule 37 



MISSISSIPPI COURT RULES 



any evidence to explain its discovery fail- 
ure. City of Jackson v. Rhaly, — So. 3d — , 
2011 Miss. App. LEXIS 224 (Miss. Ct. App. 
Apr. 19, 2011), affirmed by 2012 Miss. 
LEXIS 207 (Miss. Apr. 26, 2012). 

Dismissal of the patient's medical-neg- 
ligence action under Miss. R. Civ. P. 37(d) 
was inappropriate because there was no 
clear record of actual prejudice caused to 
the physician or medical center, or even 
that of presumptive prejudice, and the 
delays were solely the result of the negli- 
gence of plaintiff*'s counsel; thus, the trial 
court erred in its decision to dismiss the 
patient's case with prejudice and should 
have applied lesser sanctions. Holder v. 
Orange Grove Med. Specialties, RA., 54 
So. 3d 244 (Miss. Ct. App. 2010), reversed 
by 54 So. 3d 192, 2010 Miss. LEXIS 640 
(Miss. 2010). 

Plaintiff's failure to reply to discovery 
requests was a result of his attorney being 
unable to contact him for an extended 
period of time. Since plaintiff repeatedly 
missed the deadlines to respond to discov- 
ery and failed to file completed responses, 
the trial court did not abuse its discretion 
in dismissing the case with prejudice. 
Young V. Merritt, 40 So. 3d 587 (Miss. Ct. 
App. 2009). 

Trial court did not err by ordering the 
customer's case against the restaurant to 
be dismissed without prejudice for failing 
to respond to discovery, Miss. R. Civ. P. 
37(b)(2)(c), as the customer's noncompli- 
ance was based on inability to comply; the 
customer was fully aware of the trial 
court's order requiring him to respond to 
the interrogatories, and still he chose not 
to fully comply. Marshall v. Burger King, 2 
So. 3d 702 (Miss. Ct. App. 2008). 

Trial court properly granted a contrac- 
tor's motion to dismiss with prejudice 
plaintiff's' complaint on the basis of plain- 
tiffs' repeated failure to timely provide full 
and complete supplemental responses to 
written discovery requests; although the 
result may have been harsh for plaintiff's, 
the record on appeal did not provide suf- 
ficient reasons for finding the trial court 
abused its discretion in dismissing the 
action. Beck v. Sapet, 937 So. 2d 945 
(Miss. 2006). 

Where an assistant conductor sued the 
railroad for personal injuries pursuant to 



the Federal Employers' Liability Act, 45 
uses § 51 et seq., the trial court did not 
abuse its discretion in ordering a Miss. R. 
Civ. P. 37 dismissal due to the conductor's 
failure to disclose a previous back injury 
and workers' compensation claim. Allen v. 
AMTRAK, 934 So. 2d 1006 (Miss. 2006). 

Court did not err in dismissing in- 
sured's action against insurers for pay- 
ment of full benefits under a policy be- 
cause the insured failed to comply with 
the court's discovery order. Trial judge's 
action in dismissing the case without prej- 
udice was clearly within his discretion. 
Ngo V. Centennial Ins. Co., 893 So. 2d 
1076 (Miss. Ct. App. 2005). 

In an insurance case, a court properly 
dismissed funeral home owners' suit 
against an insurer where the owners 
chose to disregard the trial court's order 
and did not submit themselves for their 
scheduled depositions. Salts v. Gulf Nat'l 
Life Ins. Co., 872 So. 2d 667 (Miss. 2004). 

As a trial court did not find that appel- 
lees' misrepresentations during discovery 
were manifestly false and it was not con- 
vinced that there had been any \ying, its 
refusal to dismiss the action as a sanction 
for discovery misconduct was affirmed. 
Ross V. Nat'l Forms & Sys. Group, Inc., — 
So. 2d — , 2004 Miss. App. LEXIS 70 
(Miss. Ct. App. Feb. 3, 2004), opinion 
withdrawn by, substituted opinion at 882 
So. 2d 245, 2004 Miss. App. LEXIS 603 
(Miss. Ct. App. 2004). 

Dismissal of action for discovery mis- 
conduct was proper where requested doc- 
umentation regarding revenues and ex- 
penses was not produced, despite court 
orders, by employee who was alleging im- 
proper termination of his employment, 
and the willfulness and bad faith of the 
employee was clearly demonstrated where 
he refused to answer interrogatories and 
to produce documents for well over one 
year, in the face of at least two court 
orders. Smith v. Tougaloo College, 805 So. 
2d 633 (Miss. Ct. App. 2002). 

In an action against a pharmaceutical 
company and a physician arising from a 
massive stroke suffiered by the plaintiff" 
after taking a medication manufactured 
by the pharmaceutical company, an expert 
witness was properly allowed to testify on 
behalf of the pharmaceutical company 



186 



RULES OF CIVIL PROCEDURE 



Rule 37 



where the expert had been designated as 
an expert witness by the physician and a 
supplemental discovery response by the 
pharmaceutical company stated that it 
reserved the right to call in its case-in- 
chief any treating physician, any expert 
witness listed by the plaintiffs and any 
expert witness listed by any co-defendant; 
although the supplemental response was 
evasive or incomplete, the plaintiff failed 
to meet her burden to seek relief from the 
court prior to trial, by requesting the court 
to enter an order compelling additional 
information and, instead, waited until 
trial to object to the presentation of the 
expert witness. Her appeal was dismissed. 
Warren v. Sandoz Pharms. Corp., 783 So. 
2d 735 (Miss. Ct. App. 2000). 

It was error for the court to dismiss a 
personal injury action arising from an 
automobile accident where (1) an answer 
by the plaintiff to an interrogatory stated 
that his injuries "affected my attitude, my 
concentration, my school work, and my 
ability to do manual labor. I no longer am 
able to enjoy tinkering with automobiles 
as the stooping, bending, and squatting 
are painful;" but (2) video surveillance of 
the defendant showed him bending, twist- 
ing, and squatting while performing man- 
ual tasks and performing manual tasks at 
the tire shop at which he worked. Dismis- 
sal was inappropriate as the answer to the 
interrogatory was ambiguous and could 
be interpreted to not assert that he was 
completely incapable of bending, lifting, or 
performing manual labor, but rather that 
he was unable to enjoy performing such 
tasks. Wood v. Biloxi Pub. Sch. Dist., 757 
So. 2d 190 (Miss. 2000). 

The dismissal of the plaintiff's slip and 
fall case was not an abuse of discretion 
where the plaintiff willfully submitted 
false answers to interrogatories and 
knowingly did not answer deposition 
questions truthfully. Scoggins v. Ellzey 
Bevs., Inc., 743 So. 2d 990 (Miss. 1999). 

It was an abuse of discretion for the 
trial judge to impose the death penalty of 
dismissal where (1) discovery proceedings 
were controlled and managed by the par- 
ties and the trial court was involved only 
when the defendant could not through a 
good faith effort persuade the plaintiff to 
comply with his request to name an ex- 



pert, and (2) after the plaintiff complied, 
discovery continued. Robert v. Colson, 729 
So. 2d 1243 (Miss. 1999). 

Trial court's dismissal of suit, as a sanc- 
tion against plaintiffs who were dilatory 
in the prosecution of their claim, was 
reversed and remanded in view of defen- 
dant's own dilatory conduct. Palmer v. 
Biloxi Regional Medical Ctr., 564 So. 2d 
1346 (Miss. 1990). 

Dismissal of divorce defendant's plead- 
ing as a sanction for his discovery viola- 
tions was reversed, where trial court 
made no finding of willfulness or bad 
faith, plaintiff was not prejudiced, and 
other sanctions were available. White v. 
White, 509 So. 2d 205 (Miss. 1987). 

Expenses. 

Because expenses incurred on behalf of 
heirs and their attorneys were a direct 
result of a railroad company's failure to 
attend scheduled depositions as ordered 
by the trial court, and the heirs acted 
reasonably in relying on the trial court's 
order that the depositions proceed, with 
which order the company chose not to 
comply, an award of sanctions was proper 
and reasonable. 111. Cent. R.R. v. Winters, 
863 So. 2d 955 (Miss. 2004). 

Miss. R. Civ. P. 37 required a railroad to 
pay the reasonable expenses, including 
attorney's fees, caused by its failure to 
comply with a discovery order to produce 
certain officers for oral depositions by the 
heirs in a wrongful death action; however, 
the sanction should have only included 
the heirs' expenses to attend the sched- 
uled depositions, not the expenses to at- 
tend rescheduled depositions, which the 
heirs would have incurred anyway. Illinois 
Cent. R.R. v. Winters, 815 So. 2d 1168 
(Miss. Apr. 25, 2002). 

As losing party in motion to compel 
discovery, husband in divorce action was 
required to pay expenses incurred by de- 
ponent in opposing motion, where depon- 
ent was entitled to assert privilege, hus- 
band's motion was not substantially 
justified, and circumstances did not make 
the award unjust. Barnes v. A Confidential 
Party, 628 So. 2d 283 (Miss. 1993). 

Trial court erred in failing to award 
defendant reasonable expenses and attor- 
ney's fees incurred in preparing for and 
attending trial on date originally set; con- 



187 



Rule 37 



MISSISSIPPI COURT RULES 



tinuance was due to plaintiff's failure to 
timely disclose expert's name, and defen- 
dant was prepared to go to trial on date 
originally scheduled, as were its experts. 
Read v. Southern Pine Elec. Power Ass'n, 
515 So. 2d 916 (Miss. 1987). 

Preclusion. 

Chancery court did not err in den5dng 
the husband's motion for sanctions 
against the wife pursuant to Miss. R. Civ. 
P. 37(e), in part because the chancery 
court was faced with misconduct from 
both parties. Thus, it was within the chan- 
cellor's discretion to refuse to award sanc- 
tions. Jones V. Jones, 995 So. 2d 743 (Miss. 
Ct. App. 2007), affirmed in part and re- 
versed in part by, remanded by 995 So. 2d 
706, 2008 Miss. LEXIS 581 (Miss. 2008). 

After dismissing an insured's suit 
against insurers for payment of full ben- 
efits under a policy, the court abused its 
discretion in ordering, pursuant to Miss. 
R. Civ. P. 37(e), that the insured respond 
to prior discovery requests prior to refiling 
suit against the insurers because the or- 
der essentially enjoined the insured from 
proceeding with his claims anew until he 
complied with the prior order of the court. 
There was no evidence that the court 
considered any of the relevant factors for 
an injunction in its order. Ngo v. Centen- 
nial Ins. Co., 893 So. 2d 1076 (Miss. Ct. 
App. 2005). 

Less than two business days before the 
trial was scheduled was not "reasonable" 
notice for a motion to compel discovery. 
Boutwell V. Boutwell, 829 So. 2d 1216 
(Miss. 2002). 

Where a party fails to comply with a 
court order permitting discovery, court 
may refuse to allow disobedient party to 
support its claims with the undisclosed 
evidence. Broadhead v. Bonita Lakes 
Mall, Ltd. Partnership, 702 So. 2d 92 
(Miss. 1997). 

Trial court erred by excluding written 
timber bid, where plaintiff disclosed its 
possible existence in answer to defen- 
dant's interrogatory; defendant could 
have discovered the document via a notice 
of deposition and subpoena duces tecum 
directed to witness, and therefore defen- 
dant was not ambushed by mid-trial dis- 
covery of the written bid. Kinard v. Mor- 
gan, 679 So. 2d 623 (Miss. 1996). 



Photographs should not have been ad- 
mitted into evidence in condemnation pro- 
ceeding where they were not disclosed 
pursuant to both specific request and 
court order compelling discovery; remand 
was required since court could not say 
that introduction of the photographs could 
not have adversely affected integrity of 
the verdict. State Highway Comm'n v. 
Jones, 649 So. 2d 201 (Miss. 1995). 

Chancery court was within its authority 
in excluding testimony of defendant's ex- 
pert witness, where defendant failed to 
disclose expert's name in response to in- 
terrogatories and failed to supplement its 
answers before trial. Simmons v. Bank of 
Mississippi, 593 So. 2d 40 (Miss. 1992). 

Permanent disability was a separate 
subject matter from causation, and plain- 
tiffs' supplemental answer to expert inter- 
rogatory was insufficient to put defendant 
on notice that extent of disability might be 
a part of expert's testimony; expert's opin- 
ion therefore should have been excluded. 
T.K. Stanley, Inc. v. Cason, 614 So. 2d 942 
(Miss. 1992). 

Trial court did not err in applying sanc- 
tions and disallowing testimony and ap- 
praisal of expert not disclosed until day 
prior to trial. Varner v. Patrick, 523 So. 2d 
319 (Miss. 1988). 

Trial court was not required to exclude 
testimony of defendants' expert, where 
plaintiff did not request an order compel- 
ling discovery when defendants gave what 
plaintiff deemed to be unsatisfactory re- 
sponses to its expert witness interroga- 
tory. State Highway Comm'n v. Havard, 
508 So. 2d 1099 (Miss. 1987). 

Requirements. 

Due to the lateness of the husband's 
motion to compel, coupled with the fact 
that the hearing date was set two months 
previously by agreed order, the chancellor 
determined that the hearing should pro- 
ceed with limitations on the wife's presen- 
tation of evidence. Miss. R. Civ. P. 37(a). 
That resolution of the matter was within 
the chancellor's sound discretion. Pool v. 
Pool, 989 So. 2d 920 (Miss. Ct. App. 2008), 
writ of certiorari denied by 993 So. 2d 832, 
2008 Miss. LEXIS 383 (Miss. 2008). 

A prior written court order is not re- 
quired for issuance of sanctions under this 



188 



RULES OF CIVIL PROCEDURE 



Rule 37 



rule. Herrington v. Herrington, 660 So. 2d 
215 (Miss. 1995). 

Not only may willful and intentional 
conduct be sanctioned, but courts have 
inherent power to impose sanctions to 
protect integrity of their processes, and 
when counsel's carelessness causes his 
opponent to expend time and money need- 
lessly, it is not an abuse of discretion for 
court to require offending counsel to pay 
for his mistake, especially where out-of- 
town travel is involved. Vicksburg Refin- 
ing, Inc. V. Energy Resources, Ltd., 512 So. 
2d 901 (Miss. 1987). 

Trial court did not err in allowing plain- 
tiff's expert to testify; although expert's 
name had not been provided to defendant 
until three days before scheduled trial, 
court granted plaintiff a continuance of 
almost three months and therefore there 
was no surprise to defendant. Read v. 
Southern Pine Elec. Power Ass'n, 515 So. 
2d 916 (Miss. 1987). 

Medical malpractice action was prop- 
erly dismissed due to plaintiff's procrasti- 
nation, disobedience to lower court's or- 
ders, willful failure to comply with most 
areas of discovery, and obvious contempt 
for court's processes. Williams v. Puryear, 
515 So. 2d 1231 (Miss. 1987). 

Sanctions available. 

Chancery court did not abuse its discre- 
tion in excluding various documents relat- 
ing to a husband's alleged gambling prob- 
lems, under Miss. R. Civ. P. 37, because a 
wife failed to provide a reasonable expla- 
nation for not having produced these 
documents in a timely manner. Irby v. 
Estate of Irby, 7 So. 3d 223 (Miss. 2009). 

In a child custody case, a chancellor's 
exclusion of all of a mother's witnesses 
was justified because the father had re- 
quested their identities during discovery, 
but the mother did not respond to the 
discovery request until two days before 
trial. Klink v. Brewster, 986 So. 2d 1060 
(Miss. Ct. App. 2008). 

Trial court properly exercised its au- 
thority to impose sanctions for abuse-of- 
discovery violations; while the striking of 
the corporation's expert witnesses was an 
extreme measure, the trial court acted 
within its discretion to do so. E.I. DuPont 
de Nemours & Co. v. Strong, 968 So. 2d 
410 (Miss. 2007). 



In a wrongful death action against de- 
fendant nursing home, exclusion of labor- 
hour reports was well within the discre- 
tion of the trial court; the trial judge, in 
considering whether a continuance to re- 
view the daily time sheets would have 
cured the prejudice to plaintiff estate, 
determined that a continuance would 
have pushed the trial back almost a year, 
and ruled that the only means of prevent- 
ing prejudice was to exclude the time 
sheets. Mariner Health Care, Inc. v. Es- 
tate of Edwards, 964 So. 2d 1138 (Miss. 
2007). 

When an injured employee, who 
brought suit against her employer and a 
related casino alleging bad faith in con- 
nection to her workers' compensation 
claim, failed to comply with a trial court's 
discovery deadline, the trial court prop- 
erly struck the employee's expert's affida- 
vit. Buchanan v. Ameristar Casino Vicks- 
burg, Inc., 957 So. 2d 969 (Miss. 2007). 

Court properly denied defendant's mo- 
tion for relief from a default judgment in 
plaintiff's action to recover damages for 
timber that was cut from land; plaintiff 
was not required to first obtain an entry of 
default by the clerk of the court, pursuant 
to Miss. R. Civ. P. 55(a), prior to obtaining 
the default judgment based on the en- 
tirely separate ground of discovery abuse, 
pursuant to Miss. R. Civ. P. 37(b)(2)(C). 
Miss. R. Civ. R 37(b)(2)(C) is a totally 
distinct avenue for obtaining a default 
judgment than the provisions of Miss. R. 
Civ P 55. Hood v. Mordecai, 900 So. 2d 
370 (Miss. Ct. App. 2004), cert, denied, 
898 So. 2d 679 (Miss. 2005). 

Although Miss. R. Civ. P. 37(b)(2) gave a 
trial judge several options to compel a 
party to comply with discovery, and the 
decision to impose sanctions for discovery 
abuse was vested in the trial court's dis- 
cretion, a trial court had to consider other 
alternatives before summarily dismissing 
a case, thereby depriving a litigant of his 
rights; the circumstances of the case did 
not warrant such an extreme and harsh 
remedy as a dismissal with prejudice. 
Harvey v. Stone County Sch. Dist., 862 So. 
2d 545 (Miss. Ct. App. 2003). 

Sanction for providing an unsworn sup- 
plementation to a prior sworn response 
should possibly be monetary, but should 



189 



Rule 38 



MISSISSIPPI COURT RULES 



not be the complete exclusion of that evi- 
dence, when an apparent good faith effort 
was made to disclose the evidence. Caracci 
V. International Paper Co., 699 So. 2d 546 
(Miss. 1997). 

Chancellor erred in imposing same dis- 
covery sanctions on second defendant that 
it imposed on first, where second defen- 
dant was not a named party in chancel- 
lor's earlier order compelling discovery. 
TXG Intrastate Pipeline Co. v. 
Grossnickle, 716 So. 2d 991 (Miss. 1997). 

Imposition of monetary sanctions could 
not be upheld in absence of a discovery 
order which was violated. January v. 
Barnes, 621 So. 2d 915 (Miss. 1992). 

Circuit judge did not err in assessing 
$500 sanction against plaintiff for his 
false answer to interrogatory, which nei- 
ther he nor his counsel ever attempted to 
correct. Nichols v. Munn, 565 So. 2d 1132 
(Miss. 1990). 

M.R.C.P. Rule 37(c) did not contemplate 
sanctions where party denied requests for 
admissions which were, in effect, an accu- 
sation of arson, and therefore trial court 
did not err in failing to award sanctions 
for alleged discovery violations. Cooper v. 
State Farm Fire & Casualty Co., 568 So. 
2d 687 (Miss. 1990). 

Trial court was required to state with 
particularity its reasons for denying de- 
fendant's motion for sanctions under sub- 
division (c) of this rule, and court's failure 
to comply with that requirement was er- 
ror. Cooper V. State Farm Fire & Casualty 
Co., 568 So. 2d 687 (Miss. 1990). 



Sanctions properly denied. 

Circuit court properly denied passen- 
ger's motion for sanctions against a truck 
driver and a trucking company under 
Miss. R. Civ. P. 37(c) for their failure to 
admit fault for the underlying accident in 
responses to requests for admission be- 
cause they had reasonable grounds to con- 
clude that the automobile driver's negli- 
gence contributed to the collision. While 
the truck driver and company admitted 
liability during the trial, the issue of 
whether automobile driver was partially 
at fault was an issue to be tried regardless 
of the fact that the truck driver and/or the 
company denied or conceded their negli- 
gence. Perkins v. Star Transp., Inc., 75 So. 
3d 1065 (Miss. Ct. App. 2011), writ of 
certiorari denied by 76 So. 3d 169, 2011 
Miss. LEXIS 556 (Miss. 2011). 

Setting aside answer. 

The trial court properly set aside the 
defendant's answer where (1) he was ad- 
vised by his own attorney, both verbally 
and through certified mail, as well as the 
circuit clerk's mailed copy of the order 
compelling response to discovery, that dis- 
covery had to be complied with, yet he 
took no action, and (2) during a hearing 
held upon his motion to set aside the 
default judgment, he admitted that after 
he retained an attorney, he made no fur- 
ther contact with him even though he was 
aware of the pending action. Duckworth v. 
Strite, 748 So. 2d 794 (Miss. Ct. App. 
1999). 



RESEARCH REFERENCES 



ALR. Sanctions available under Rule 
37, Federal Rules of Civil Procedure, other 
than exclusion of expert testimony, for 



failure to obey discovery order not related 
to expert witness. 156 A.L.R. Fed. 601. 



CHAPTER VI. TRIALS 

Rule 38. Jury trial of right. 

(a) Right preserved. The right of trial by jury as declared by the Constitution 
or any statute of the State of Mississippi shall be preserved to the parties 
inviolate. 

(b) Waiver of jury trial. Parties to an action may v^aive their rights to a jury 
trial by filing with the court a specific, v^ritten stipulation that the right has 
been waived and requesting that the action be tried by the court. The court 



190 



RULES OF CIVIL PROCEDURE 



Rule 40 



may, in its discretion, require that the action be tried by a jury notwithstand- 
ing the stipulation of waiver. 



COMMENT 



The purpose of Rule 38 is to guarantee 
to litigants their right to a trial by jury as 
declared by § 31 of the Mississippi Con- 
stitution, while simultaneously providing 
for more flexibility in the uses of juries. 

Rule 38(a) neither broadens nor re- 
stricts the pre-Rule 38 right to a trial by 
jury; it takes a neutral position and af- 
firms the right to a trial by jury in cases 



where it was guaranteed before the Rule. 
See In re Extension of Boundaries of City 
of Meridian, 237 Miss. 486, 115 So.2d 323 
(1959) (Miss. Const. § 31 applies only to 
those cases where a jury trial was re- 
quired at common law); Talbot & Higgins 
Lumber Co. v. McLeod Lumber Co., 147 
Miss. 186, 113 So. 433 (1927). 



JUDICIAL DECISIONS 



In general. 
Waiver. 

In general. 

Neither Art. 3, § 31 of the Mississippi 
Constitution nor M.R.C.P. 38, both of 
which provide for the right to a jury trial, 
require that right extend to appellate pro- 
ceedings. Cockrell v. City of Southaven, 
730 So. 2d 1119 (Miss. 1998), cert, denied, 
528 U.S. 817, 120 S. Ct. 57, 145 L. Ed. 2d 
50 (1999). 

Chancery court was not required to 
transfer case to circuit court in order to 
provide injured bus passengers with a 



jury trial, where plaintiff insurer, in good 
faith, interpled $25,000 coverage on bus 
involved, and chancellor, in good faith, 
received and proceeded with jurisdiction 
of case in his court. Cossitt v. Nationwide 
Mut. Ins. Co., 551 So. 2d 879 (Miss. 1989). 

Waiver. 

An implied waiver cannot be derived 
from a plaintiff's election of forum; a spe- 
cific, written stipulation waiving the right 
to a jury is required. Burnette v. Hartford 
Underwriters Ins. Co., 770 So. 2d 948 
(Miss. 2000). 



Rule 39. Trial by jury or by the court. [Omitted]. 



COMMENT 



Federal Rule 38 requires that a party 
desiring a trial by jury demand same in 
writing; if such a demand is not timely 
made, the right to trial by jury may be 
deemed waived and the action will be 
tried by the court. Federal Rule 39 pre- 
scribes the procedures for designating on 
the docket which actions are to be tried by 
a jury and which by the court. 



Mississippi Rule 38 merely recites that 
a party's right to a jury trial is unabridged 
by these rules, but permits the right to be 
waived. There is no need for docketing 
actions according to whether they are to 
be tried by the court or by a jury; hence, 
Rule 39 is omitted. 



Rule 40. Assignment of eases for trial. 

(a) Methods. Courts shall provide for placing of actions upon the trial 
calendar 

(1) without request of the parties; or 

(2) upon request of a party and notice to the other parties; or, 

(3) in such other manner as the court deems expedient. 



191 



Rule 40 MISSISSIPPI COURT RULES 

Prior to the calling of a case for trial, the parties shall be afforded ample 
opportunity, in the sound discretion of the court, for completion of discovery. 

(b) Notice. The court shall provide by written direction to the clerk when a 
trial docket will be set. The clerk shall at least five (5) days prior to the date on 
which the trial docket will be set notify all attorneys and parties without 
attorneys having cases upon the trial calendar of the time, place, and date 
when said docket shall be set. All cases shall be set on the trial docket at least 
twenty (20) days before the date set for trial unless a shorter period is agreed 
upon by all parties or is available under Rule 55. The trial docket shall be 
prepared by the clerk at the time actions are set for trial and shall state the 
case to be tried, the date of trial, the attorneys of record in the case, and the 
place of trial. Additionally, said trial docket shall reflect such attorneys of 
record and parties representing themselves as were present personally or by 
designee when the trial docket was set. The clerk shall within three (3) days 
after a case has been placed on the trial docket notify all parties who were not 
present personally or by their attorney of record at the docket setting as to 
their trial setting. Notice shall be by personal delivery or by mailing of a notice 
within said three (3) day period. Matters in which a defendant is summoned to 
appear and defend at a time and place certain pursuant to Rule 81 or in which 
a date, time and place for trial have been previously set shall not be governed 
by this rule. 

(c) Trial by agreement. Parties, including those who are in a representative 
or judicial capacity, may waive any waiting period imposed by these rules or 
statute and agree to a time and place for trial. (Amended effective July 1, 1986; 
September 1, 1987; March 1, 1989.) 

ADVISORY COMMITTEE HISTORICAL NOTE 

Effective March 1, 1989, Rule 40(a) was shorten the time period provided for giv- 
amended by abrogating reference to local ing interested attorneys and parties no- 
rules. 536-538 So. 2d XXX (West Miss, tice of the setting of the trial docket; to 
Cas. 1989). provide for at least twenty days between 

Effective September 1, 1987, Rule 40 the time of the setting of a case on the 

was amended by adding subsection (c) docket and the time of the trial; to provide 

providing for the scheduling of trials by for certain information to be recorded on 

agreement of the parties. 508-511 So. 2d the docket; and for other purposes. 486- 

XXVIII (West Miss. Cas. 1987). 490 So. 2d XXI (West Miss. Cas. 1986). 

Effective July 1, 1986, Rule 40(b) was 
amended by substantially rewriting it to 

COMMENT 

Rule 40 establishes an orderly but flex- of pending actions that the court has 
ible method of scheduling cases for trial, found ready for trial. The order in which 
while assuring that the parties receive the cases appear on the trial calendar 
appropriate notice at important stages of generally corresponds to the order in 
the process. It accomplishes this function which they will be tried. Rule 40(a) re- 
through the mechanisms of the trial cal- quires that each court define the method 
endar and the trial docket. The trial cal- of placing actions on the trial calendar, 
endar, also required by Rule 79(c), is a list The precise method chosen is within the 

192 



RULES OF CIVIL PROCEDURE 



Rule 40 



court's discretion, subject only to the re- 
quirement that it allow adequate time for 
discovery. 

The trial docket reflects the trial dates 
for cases on the trial calendar, and is 
governed by Rule 40(b). The rule requires 
that the trial docket be prepared at the 
time the cases are set down for trial and 
that it state (i) the date, time, and place of 
trial; (ii) the names of the attorneys of 
record; (iii) and the names of attorneys 
and litigants who were present when the 
case was set for trial. Rule 40(b) requires 
that at least five (5 ) days notice be given to 
litigants of the date the case is to be set 
down for trial. This provision will allow 
attorneys and litigants the opportunity to 
be heard in the scheduling of their case for 
trial. 

In addition, Rule 40(b) requires that the 
trial date be at least twenty (20) days 
after the time the case is set for trial, 
unless the parties agree to a shorter pe- 
riod. The purpose of this requirement is, 
of course, to allow the parties adequate 
time to prepare for trial. Parties who are 
present at the setting receive notice of the 
date and time of trial at that time. Rule 
40(b) requires the clerk to mail or person- 
ally to deliver notice of the date and time 
of trial within three (3) days to all parties 
not present or represented by their attor- 
ney at the setting. Thus, all parties will 
have received notice of the date, time and 
place of trial seventeen (17) days before 
that date, less the time necessary for the 
delivery of notice by mail. This time is 
adequate, first, since all cases covered by 
the rule will already have been found 
ready for trial under Rule 40(a). Moreover, 
all parties will have received notice of the 
setting of the docket and will therefore be 
aware that their trial may be imminent. 

The twenty-day waiting period is inap- 
plicable to hearings conducted by the 



court in connection with default judg- 
ments under Rule 55. 

Rule 40(b) is subject to two (2) general 
exceptions. First, in actions in which the 
defendant is summoned to appear at a 
particular tijne and place, the rule is in- 
applicable, although in such cases, the 
court should give all parties notice appro- 
priate to the nature of the case. Second, if 
a case has been'placed on the trial docket 
under Rule 40(b) and for whatever reason 
is not tried at the scheduled time, the 
court may reschedule the trial for any 
date without further notice. To require 
five (5) days notice of the resetting and 
twenty (20) days notice of trial in all such 
cases would unduly hinder the prompt 
rescheduling of cases that are fully pre- 
pared for trial. 

1985 Revision. Rule 40(b) was com- 
pletely revised in 1985. The earlier ver- 
sion of the rule was ambiguous, but ap- 
peared to require that parties be given 
twenty (20) days notice of the proceeding 
at which the trial calendar is prepared, 
but established no mandatory time be- 
tween that proceeding and the trial date. 
The committee determined that this rule 
required too much notice of the date the 
case was to be set, and failed to require 
adequate notice of the trial date. 

Paragraphs (a) and (b) provide the man- 
ner in which a trial date is obtained in 
instances where parties are unable to 
agree on such date. Paragraph (c), added 
in 1987, makes clear that parties are not 
bound to follow the formalities of para- 
graphs (a) and (b), but may agree upon a 
trial date. Paragraph (c) also provides 
that any rule or statutory waiting period 
required prior to hearing or trial may be 
waived by parties, including those in a 
representative or fiduciary capacity. 

[Amended effective September 1, 1987; 
March 1, 1989.] 



JUDICIAL DECISIONS 



In general. 
Notice. 

In general. 

The parties to the action did not agree 
to a trial date and the clerk did not pro- 
vide mandatory written notice of the trial 
date; thus, the judgment should have been 



set aside and a new trial date fixed. King 
V. King, 556 So. 2d 716 (Miss. 1990). 

Notice. 

Trial court did not err in denying appel- 
lant's motion to set aside a judgment en- 
tered in favor of appellees because appel- 
lant had sufficient notice of his trial when 



193 



Rule 41 



MISSISSIPPI COURT RULES 



he admittedly signed the agreed order 
setting the trial, appellant's presence at 
the hearing for setting the trial date was 
sufficient notice to satisfy Miss. R. Civ. P. 
40(b), and his agreement to reschedule the 
trial date was explicitly allowed under 
Rule 40(c); appellant provided no evidence 
that the trial court awarded relief to ap- 
pellees based solely on the fact that he 
was not present on the day of trial because 
testimony and other documentary evi- 
dence were received and admitted into 
evidence. Dufrene v. Slade, 21 So. 3d 703 
(Miss. Ct. App. 2009). 

Chancery court was not required, under 
Miss. R. Civ. R 40(b), to send a husband 
notice of a divorce hearing because the 
husband did not respond to the chancery 
court regarding the action, after he was 
personally served with process, under 
Miss. R. Civ. P. 4(h), within 120 days of the 
filing of the complaint by a wife. Carlisle v. 
Carhsle, 11 So. 3d 142 (Miss. Ct. App. 
2009). 

Appellate court in no way suggests, in- 
timates or holds that the date of a divorce 
trial must be set on the trial docket at 
least 20 days prior to trial. In many in- 
stances, if not most, complaints for divorce 
may be set for trial outside of the normal 



docket setting of the civil trial docket 
because a divorce case may not be set 
down on the issue docket unless at the 
request of one of the parties. Miss. Code 
Ann. § 93-5-7. The appellate court simply 
holds that once a party appears in a tem- 
porary phase of the divorce proceeding, 
the party is entitled to notice of the sub- 
sequent hearing on the underlying divorce 
proceeding unless the party is so notified 
during the temporary proceeding. Brown 
V. Brown, 872 So. 2d 787 (Miss. Ct. App. 
2004). 

Subsection (b) does not require that a 
notice of hearing be sent to a party who 
never answered the complaint. Stinson v. 
Stinson, 738 So. 2d 1259 (Miss. Ct. App. 
1999). 

The notice requirement of subsection (b) 
does not apply to the uncontested motion 
schedule. Stinson v. Stinson, 738 So. 2d 
1259 (Miss. Ct. App. 1999). 

Although the mailing of a notice to an 
incorrect address — the last number in 
the zip code was incorrect — negated the 
presumption of delivery, the trial court 
properly found that there was proper and 
timely delivery based on the evidence. 
Thames v. Smith Ins. Agency, Inc., 710 So. 
2d 1213 (Miss. 1998). 



Rule 41. Dismissal of actions. 

(a) Voluntary dismissal effect thereof 

(1) By Plaintiff By Stipulation. Subject to the provisions of Rule 66, or of any 
statute of the State of Mississippi, and upon the payment of all costs, an action 
may be dismissed by the plaintiff vv^ithout order of court: 

(i) by filing a notice of dismissal at any time before service by the adverse 
party of an answer or of a motion for summary judgment, whichever first 
occurs; or 

(ii) by filing a stipulation of dismissal signed by all parties who have 
appeared in the action. 

Unless otherwise stated in the notice of dismissal or stipulation, the 
dismissal is without prejudice. 

(2) By Order of Court. Except as provided in paragraph (a)(1) of this rule, an 
action shall not be dismissed at the plaintiff's instance save upon order of the 
court and upon such terms and conditions as the court deems proper. If a 
counter-claim has been pleaded by a defendant prior to the service upon him of 
the plaintiff's motion to dismiss, the action may be dismissed but the 
counter-claim shall remain pending for adjudication by the court. Unless 
otherwise specified in the order, a dismissal under this paragraph is without 
prejudice. 



194 



RULES OF CIVIL PROCEDURE Rule 41 

(b) Involuntary dismissal: effect thereof. For failure of the plaintiff to 
prosecute or to comply with these rules or any order of court, a defendant may 
move for dismissal of an action or of any claim against him. After the plaintiff, 
in an action tried by the court without a jury, has completed the presentation 
of his evidence, the defendant, without waiving his right to offer evidence in 
the event the motion is not granted, may move for a dismissal on the ground 
that upon the facts and the law the plaintiff has shown no right to relief. The 
court may then render judgment against the plaintiff or may decline to render 
any judgment until the close of all the evidence. If the court renders judgment 
on the merits against the plaintiff, the court may make findings as provided in 
Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a 
dismissal under this subdivision and any other dismissal not provided for in 
this rule, other than a dismissal for lack of jurisdiction, for improper venue, or 
for failure to join a party under Rule 19, operates as an adjudication upon the 
merits. 

(c) Dismissal of counter-claim, cross-claim or third-party claim. The provi- 
sions of this rule apply to the dismissal of any counter-claim, cross-claim, or 
third-party claim. A voluntary dismissal by the claimant alone pursuant to 
paragraph (a)(1) of this rule shall be made before a responsive pleading is 
served or, if there is none, before the introduction of evidence at the trial or 
hearing. 

(d) Dismissal on clerk's motion. 

(1) Notice. In all civil actions wherein there has been no action of record 
during the preceding twelve months, the clerk of the court shall mail notice to 
the attorneys of record that such case will be dismissed by the court for want 
of prosecution unless within thirty days following said mailing, action of record 
is taken or an application in writing is made to the court and good cause shown 
why it should be continued as a pending case. If action of record is not taken 
or good cause is not shown, the court shall dismiss each such case without 
prejudice. The cost of filing such order of dismissal with the clerk shall not be 
assessed against either party. 

(2) Mailing Notice. The notice shall be mailed in every eligible case not later 
than thirty days before June 15 and December 15 of each year, and all such 
cases shall be presented to the court by the clerk for action therein on or before 
June 30 and December 31 of each year. These deadlines shall not be inter- 
preted as a prohibition against mailing of notice and dismissal thereon as cases 
may become eligible for dismissal under this rule. This rule is not a limitation 
upon any other power that the court may have to dismiss any action upon 
motion or otherwise. 

(e) Cost of previously dismissed action. If a plaintiff whose action has once 
been dismissed in any court commences an action based upon or including the 
same claim against the same defendant, the court may make such order for the 
payment of costs of the action previously dismissed as it may deem proper and 
may stay the proceedings in the action until the plaintiff has complied with the 
order. 

195 



Rule 41 



MISSISSIPPI COURT RULES 



COMMENT 



The purpose of Rule 41 is to establish a 
uniform rule governing voluntary and in- 
voluntary dismissals of actions. Rule 
41(a), which permits a plaintiff voluntar- 
ily to dismiss his action, is intended to 
give him the right to take the case out of 
court if no other party will be prejudiced. 
The right is limited by the rule to the 
period before answer or motion for sum- 
mary judgment; thereafter dismissal can 
be had only with consent of the court and 
on such conditions as are just. 

Rule 41(a)(1) provides two methods by 
which a plaintiff may dismiss an action 
without obtaining the consent of the court: 
He may do so at any time by stipulation of 
all the parties; he may do so prior to 
service of an answer or of a motion for 
summary judgment by his own unilateral 
act of filing a notice of dismissal with the 
court. 

The defenses listed in Rule 12(b) may, at 
the option of the defendant, be asserted in 
an answer or by motion to dismiss. If they 
are included in an answer, the service of 
the answer terminates plaintiff's right to 
dismiss by notice. Plaintiff's right of vol- 
untary dismissal is not cut off if the de- 
fense is put forward by motion to dismiss. 
A motion to dismiss is neither an answer 
nor, unless accompanied by affidavits stat- 
ing matters outside the pleadings that are 
not excluded by the court, a motion for 
summary judgment; a motion to dismiss 
does not terminate the right of dismissal 
by notice, nor does a motion for a stay or a 
motion for change of venue. 

The other procedure for voluntary dis- 
missal, in addition to dismissal by notice, 
a dismissal by stipulation of all the par- 
ties. Dismissal by stipulation may be had 
at any time. A stipulation will not be 
construed as being for dismissal in the 
absence of an unequivocal statement by 
the parties that it was so intended. 

Dismissal by stipulation is without prej- 
udice unless the stipulation provides that 
it is to be with prejudice. A voluntary 
dismissal by stipulation is effective imme- 
diately and does not require judicial ap- 
proval. 

The procedure under MRCP 41(a)(1) is 
contrary to past Mississippi nonsuit prac- 



tice, which permitted the plaintiff to vol- 
untarily dismiss his suit without preju- 
dice at any time before the case was 
submitted to the jury. Miss. Code Ann. 
§ 11-7-125; See also Miss. Code Ann. 
§ 11-7-127 (1972) (plaintiff may take a 
nonsuit before the clerk in vacation); Alli- 
son V. Camp Creek Drainage Dist., 211 
Miss. 354, 364, 51 So.2d 743, 747 (1951) 
(plaintiff in chancery action may nonsuit 
without prejudice up to time cause is 
submitted to chancellor for final decision 
on the merits); but see Adams v. Lucedale 
Commercial Co., 113 Miss. 608, 74 So. 435 
(1917). It is also contrary to practice under 
Federal Rule 41(a), which permits only 
one voluntary nonsuit at any time before 
defendant's responsive pleading is made. 

Although Miss. Code Ann. §§ 11-27-125 
and 11-27-127 (1972) are couched in terms 
ostensibly granting an absolute right to 
the plaintiff to nonsuit before the cause is 
submitted, the statutes have not been so 
interpreted, particularly in chancery prac- 
tice: "Wlien in any respect the cause has 
proceeded to that point . . . that the 
defendant has . . . secured some substan- 
tial right which would be destroyed by the 
dismissal, it should not be permitted." 
Mitchell V. Film Transit Co., 194 Miss. 
550, 13 So.2d 154 (1943). See also V. 
Griffith, Mississippi Chancery Practice, 
§ 534 (2d ed. 1950). 

The trial court has no power to impose 
terms and conditions if a plaintiff properly 
dismisses by notice under Rule 41(a)(1). 
Nor may the plaintiff seek to make a 
conditional dismissal under that portion 
of the rule. If dismissal is by stipulation 
under Rule 41(a)(1), the parties work out 
for themselves the conditions on which 
they will enter into the stipulation. Ac- 
cordingly, the authority of the court to 
require "such terms and conditions as the 
court deems proper" is limited to a motion 
for dismissal under Rule 41(a)(2). 

The terms of conditions that may be 
imposed upon the granting of a motion for 
voluntary dismissal are for the protection 
of the defendant, although if one of several 
plaintiffs moves for dismissal conditions 
may be imposed for the protection of the 
remaining plaintiffs. The court may dis- 



196 



RULES OF CIVIL PROCEDURE 



Rule 41 



miss without conditions if they have not 
been shown to be necessary, but should at 
least require that the plaintiff pay the 
costs of the litigation. In imposing condi- 
tions the court is not limited to taxable 
costs, but may require the plaintiff to 
compensate for all of the expenses to 
which his adversary has been put; the 
court may require plaintiff to pay the 
defendant's attorney's fees as well as other 
costs and disbursements. 

Dismissal on motion under Rule 
41(a)(2) is within the sound discretion of 
the court, and its order is reviewable only 
for abuse of discretion. The discretion 
given the court by Rule 41(a)(2) is a judi- 
cial, rather than an arbitrary, discretion. 
If necessary, a hearing should be held and 
the court should endeavor to ensure sub- 
stantial justice to both parties. 

The purpose of Rule 41(a)(2) is primar- 
ily to prevent voluntary dismissal which 
unfairly affects the other side, and to 
permit the imposition of curative condi- 
tions. Accordingly, the dismissal should be 
allowed generally unless the defendant 
will suffer some plain legal prejudice 
other than the mere prospect of a second 
law suit. It is not a bar to dismissal that 
plaintiff may obtain some tactical advan- 
tage thereby. 

The second sentence of Rule 41(a)(2) 
provides that if a counter-claim has been 
pleaded by a defendant prior to the service 
upon him of the plaintiff's motion to dis- 
miss, the action shall not be dismissed 
against the defendant's objection unless 
the counter-claim can remain pending for 
independent adjudication by the court. 
The purpose of the rule is to preserve the 
court's jurisdiction over the parties and 
the counter-claim. Ordinarily the counter- 
claim can stand on its own and dismissal 
can be granted without affecting the coun- 
ter-claim. If the counter-claim is compul- 
sory, the court has jurisdiction to decide it 
even though the plaintiff claim is dis- 
missed; if the counter-claim is permissive, 
it will ordinarily require independent 
grounds for jurisdiction and these inde- 
pendent grounds permit it to remain 
pending. Thus, the rule applies only when 
there is a permissive counter-claim that 
can be maintained without an indepen- 
dent ground of jurisdiction, as when it is a 



setoff, or in other unusual circumstances 
in which the counter-claim would fall if 
the plaintiff's claim were dismissed. 

Rule 41(b) allows the court to dismiss 
an action involuntarily for three different 
causes: dismissal at the close of the plain- 
tiff's evidence for failure to show a right to 
relief, which operates as a decision on the 
merits, dismissal for want of prosecution, 
which is a penalty for dilatoriness, See 
Miss. Code Ann. § 11-53-25 (1972) (dis- 
missal for want of prosecution); and dis- 
missal for failure to comply with "these 
rules" or any order of the court; see Sher- 
win Williams Co. v. Feld Bros. & Co. , 139 
Miss. 21, 28, 103 So. 795, 796 (1925) 
(plaintiff may be nonsuited by the court 
for failure to comply with order to make 
declaration more specific). Unless other- 
wise specifically ordered by the court, an 
involuntary dismissal under Rule 41(b) 
ordinarily operates as an adjudication 
upon the merits and is with prejudice. See 
9 Wright & Miller, Federal Practice and 
Procedure, Civil §§ 2369-2373 (1971). 
However, past Mississippi practice has 
tempered this harsh result by allowing 
dismissed cases to be reinstituted, except 
in extreme situations. See, e. g. Ross v. 
Milner, 194 Miss. 497, 505-06, 12 So.2d 
917, 918 (1943) (where order did not recite 
that cause was dismissed without preju- 
dice, it was considered as being dismissed 
with prejudice); Peoples Bank v. D'Lo Roy- 
alties, Inc., 206 So.2d 836, 837 (Miss.1968) 
(dismissal is a drastic punishment which 
should not be invoked except where con- 
duct of parties has been so deliberately 
careless as to call for such action). 

Rule 41(c) provides that the other sub- 
divisions of Rule 41, stating the proce- 
dures for and consequences of dismissals, 
apply to the dismissal of a counter-claim, 
cross-claim, or third-party claim. 

One exception is allowed for Rule 41(c) 
matters because the right of voluntary 
dismissal with notice, MRCP 41(a)(1), is 
terminated by an answer. This will not 
work for counter-claims, cross-claims, or 
third-party claims, since defendant will 
ordinarily assert these with or subsequent 
to his answer. Accordingly, Rule 41(c) pro- 
vides that a voluntary dismissal by a 
defendant, or other claimant, of a counter- 
claim, cross-claim, or third-party claim 



197 



Rule 41 



MISSISSIPPI COURT RULES 



must be made before a responsive plead- 
ing is served or, if none, before the intro- 
duction of evidence at the trial. MRCP 
41(a)(1) also provides that the service of a 
motion for summary judgment also termi- 
nates the right to dismiss by notice. As a 
matter of logic and judicial consistency, if 
a motion for summary judgment defeats 
plaintiff's right to dismiss, then it should 
also defeat the right of a defendant to 
dismiss his counter-claim, cross-claim, or 
third-party claim. See 9 Wright & Miller, 
supra, § 2374. 

Rule 41(d) authorizes the clerk to move 
for dismissal of cases in which there has 
been no action of record during the pre- 
ceding 12 months. The clerk is required to 
give notice of such action to the opposing 
parties who may counter the clerk's mo- 
tion to retain the case on the court's 
docket. This provision supersedes Miss. 
Code Ann. § 11-53-25 (1972) (clerk shall 
move for dismissal of any cause pending 
in which no action has been taken for the 
two preceding terms). The statute did not 
require notice of the dismissal — the par- 
ties were deemed to be before the court in 



cases pending on the active docket. Ross v. 
Milner, supra. If a court has implemented 
the Mississippi Electronic Court System, 
the notice required by Rule 41(d) may be 
sent in the same manner as other notices 
consistent with the Mississippi Electronic 
Court System procedures. Please refer to 
the Administrative Procedures for Missis- 
sippi Electronic Court System on the Su- 
preme Court's website at www. 
mssc. state. ms. us. 

Under Rule 41(e), if a plaintiff who has 
once dismissed an action in any court 
commences another action on the same 
claim against the same defendant, the 
court may require the payment of costs in 
the prior action before proceeding with the 
latter. The matter is discretionary with 
the court. Rule 41(e) by its terms is appli- 
cable only when the plaintiff "has once 
dismissed an action"; thus, it does not 
cover cases in which there was an invol- 
untary dismissal of the prior action by the 
court. This accords with prior practice 
pursuant to Miss. Code Ann. §§ 11-7-127 
and 11-53-25 (1972). (Comment amended 
December 11, 2008). 



JUDICIAL DECISIONS 



In general. 

Construction. 

Applicability. 

Abuse of discretion. 

Bench trials. 

Dismissal for discovery misconduct. 

Dismissal not warranted. 

Dismissal warranted. 

Dismissal without prejudice. 

Failure to prosecute. 

Findings. 

Reinstitution of cases. 

Requirements. 

Res judicata. 

Review. 

Waiver. 

What constitues "application in writing." 

In general. 

Aggravating factors to be considered 
include: (1) the extent to which the plain- 
tiff, as distinguished from his counsel, was 
personally responsible for the delay, (2) 
the degree of actual prejudice to the de- 
fendant, and (3) whether the delay was 



the result of intentional conduct. Hillman 
v. Weatherly, 14 So. 3d 721 (Miss. 2009). 

Trial court did not abuse its discretion 
in dismissing without prejudice, pursuant 
to Miss. R. Civ. P. 41(b), the claims of 
severed plaintiffs which were not properly 
filed in Noxubee County; the trial court's 
actions were in conformity with a proce- 
dure later prescribed by the supreme 
court where upon plaintiffs could refile in 
a proper venue. Gordon v. Honeywell 
Int'l., Inc., 962 So. 2d 547 (Miss. 2007). 

Where a divorce action was filed ten 
years earlier and temporary support was 
ordered, it was properly not considered 
the line of demarcation for the equitable 
division of marital assets because the case 
was subsequently dismissed as being stale 
under Miss. R. Civ. P. 41; the dismissal 
relieved the husband of his support obli- 
gations. Marshall v. Marshall, 979 So. 2d 
699 (Miss. Ct. App. 2007). 

There was nothing to prevent a chancel- 
lor in one case from dismissing litigation 
in another case, pursuant to the parties' 



198 



RULES OF CIVIL PROCEDURE 



Rule 41 



agreement. Hayes v. Leflore County Bd. of 
Supervisors, 935 So. 2d 1015 (Miss. 2006). 

Because the driver failed to prove that 
the State Aid defendants were neghgent, 
the trial court properly dismissed the 
State Aid defendants under Miss. R. Civ. 
P. 41(b). Ladner v. Stone County, 938 So. 
2d 270 (Miss. Ct. App. 2006), writ of cer- 
tiorari denied by 937 So. 2d 450, 2006 
Miss. LEXIS 542 (Miss. 2006). 

Trial court's grant of the county's mo- 
tion for voluntary dismissal without prej- 
udice was an adverse and final appealable 
order, and the award of attorney's fees 
under Miss. R. Civ. R 41(a)(2) was well 
supported but the reasonableness of fee 
amount was never substantiated, there- 
fore the fee award was vacated and the 
case was remanded for the trial court to 
determine the reasonableness of the fees 
pursuant to the factors provided in Miss. 
R. Prof Conduct 1.5. BellSouth Pers. 
Commun., LLC v. Bd. of Supervisors, 912 
So. 2d 436 (Miss. 2005). 

Paramedic testified that the "hallmark 
signs" of a placental abruption, excruciat- 
ing pain and excessive bleeding, were not 
present, and both paramedics testified 
that they did not see blood. The pregnant 
employee testified that blood was not 
found because her co-workers had wiped 
the blood from the floor, but the trial court 
properly found that since neither para- 
medic testified that they saw blood then it 
could only find such a decision to be dis- 
cretionary; therefore, given that the em- 
ployee's condition was abnormal, whether 
to have treated the situation as a "load 
and go" required the paramedics to use 
their own judgment, the trial court cor- 
rectly deemed the paramedic's decision as 
discretionary, and it correctly granted the 
city's motion to dismiss the wrongful 
death action under Miss. R. Civ. P. 41(b). 
Sanders v. Riverboat Corp., 913 So. 2d 351 
(Miss. Ct. App. 2005). 

Power to dismiss for failure to prosecute 
under Miss. R. Civ. P. 41(b) was inherent 
in any court of law or equity, being a 
means necessary to the orderly expedition 
of justice and the court's control of its own 
docket; no action in the client's case had 
been taken during the preceding 12 
months and no application was made and 
good cause shown why his case should not 



have been dismissed, and the client's mo- 
tion for reconsideration was void as it was 
not timely filed. Curry v. Walls, 871 So. 2d 
762 (Miss. Ct. App. 2004). 

In the context of reviewing a dismissal 
for failure to prosecute under Miss. R. Civ. 
P. 41(b), there is no requirement that a 
party must be represented by an attorney, 
and dismissing a party's lawsuit simply 
because that party does not acquire an 
attorney is clearly an abuse of discretion. 
Camacho v. Chandeleur Homes, Inc., 862 
So. 2d 540 (Miss. Ct. App. 2003). 

Though the testimony of a natural 
mother and maternal grandmother of an 
adopted child in support of the mother's 
complaint to revoke consent suggested at 
least an inference of undue influence, the 
chancellor had the opportunity to observe 
the witnesses' manner and demeanor; ac- 
cordingly, the chancellor did not mani- 
festly err by finding that the mother had 
failed to meet her burden of proof or err in 
granting dismissal to the adoptive parents 
under Miss. R. Civ. R 41(b). CT. v. R.D.H. 
(In re D.N.T), 843 So. 2d 690 (Miss. 2003). 

Federal court granted plaintiffs' motion 
to dismiss the removed action where 
plaintiffs filed a stipulation of dismissal in 
the state court action under Miss. R. Civ. 
P. 41(a) after the notice of removal had 
been filed in the federal court but before 
the state court had been notified of the 
removal, as the state court's jurisdiction 
continued until it had notice of the re- 
moval, and the filing of defendants' an- 
swer in federal court had no effect on the 
state court's jurisdiction. Davis v. Estate 
of Harrison, 214 F. Supp. 2d 695 (S.D. 
Miss. 2002). 

The applicable standard of review to an 
appeal of grant or denial of a motion to 
dismiss is substantial evidence/manifest 
error. Alexander v. Brown, 793 So. 2d 601 
(Miss. 2001). 

The rule is clear and unambiguous on 
its face and admits of no exceptions that 
call for the exercise of judicial discretion 
by any court; other than to determine, 
should the question arise, whether an 
answer or a motion for summary judg- 
ment has in fact been filed prior to the 
filing of a notice of dismissal, a court has 
no function under the rule. McGriggs v. 
Montgomery, 710 So. 2d 886 (Ct. App. 
1998). 



199 



Rule 41 



MISSISSIPPI COURT RULES 



Unless otherwise specifically ordered by 
the court, an involuntary dismissal under 
subsection (b) ordinarily operates as an 
adjudication upon the merits and is with 
prejudice. Taylor v. GMC, 717 So. 2d 747 
(Miss. 1998). 

Standard of review applicable on mo- 
tion to dismiss under subdivision (b) of 
this rule is distinguished from that appli- 
cable on motion for directed verdict. Stew- 
art V. Merchants Nat'l Bank, 700 So. 2d 
255 (Miss. 1997). 

Construction. 

Miss. R. Civ. P. 41(b) embodies the tenet 
that any court of law or equity may exer- 
cise the power to dismiss for want of 
prosecution; this power, inherent to the 
courts, is necessary as a means to the 
orderly expedition of justice and the 
court's control of its own docket. However, 
the remedy of dismissal with prejudice is 
an extreme and harsh sanction that de- 
prives a litigant of the opportunity to 
pursue his claim, and any dismissals with 
prejudice are reserved for the most egre- 
gious cases; what constitutes failure to 
prosecute is considered on a case-by-case 
basis. Hillman v. Weatherly, 14 So. 3d 721 
(Miss. 2009). 

Case should be dismissed with preju- 
dice under Miss. R. Civ. P. 41(b) only if 
lesser sanctions are inadequate; lesser 
sanctions include fines, costs, or damages 
against plaintiff or his counsel, attorney 
disciplinary measures, conditional dismis- 
sal, dismissal without prejudice, and ex- 
plicit warnings. Where there is no indica- 
tion in the record that the lower court 
considered any alternative sanctions to 
expedite the proceedings, appellate courts 
are less likely to uphold a Rule 41(b) 
dismissal. Hillman v. Weatherly, 14 So. 3d 
721 (Miss. 2009). 

Letter in response to a Miss. R. Civ. P. 
41(d) motion for dismissal that simply 
requests that a case remain on the docket 
is an action of record when the letter is: (1) 
timely sent within the 30-day period 
which begins upon the filing of the motion; 
(2) found to be a sufficient action on the 
record and that finding is not in contra- 
diction to an existing statute or decision of 
the Supreme Court of Mississippi; and (3) 
considered as part of a hearing where the 
trial court determined good cause existed 



for allowing the case to remain on its 
docket. Cucos, Inc. v. McDaniel, 938 So. 2d 
238 (Miss. 2006). 

Under subdivision (b) of this rule, dis- 
missal for lack of jurisdiction does not 
operate as an adjudication on the merits. 
Jones V. Starr, 586 So. 2d 788 (Miss. 1991). 

Subdivision (a)(2) of this rule could not 
be interpreted and interposed to prevent 
State of Mississippi and Attorney General 
from proceeding with chancery court mat- 
ter until they paid intervenor's attorneys' 
fees. State ex rel. Pittman v. Griffin, 450 
So. 2d 426 (Miss. 1984). 

Applicability. 

Order of dismissal from the justice court 
stated that the matter came on the "mo- 
tion of the defendant requesting this 
Court to dismiss the appeal filed herein," 
and the clerk's docket entry did not indi- 
cate that a written motion to dismiss was 
filed; there was no transcript of a proceed- 
ing that would indicate that an oral mo- 
tion was presented to the court, and there 
appeared to be no basis under Miss. R. 
Civ. P. 41 for the circuit court to have 
dismissed this action. Statham v. Miller, 
988 So. 2d 407 (Miss. Ct. App. 2008). 

Although the proper motion would have 
been one for an involuntary dismissal, a 
trial court erred when it granted a di- 
rected verdict in an action alleging fraud, 
breach of contract, and negligence because 
the evidence showed that a travel com- 
pany held itself out as an agent of a 
foreign company operating an airplane, 
and an airport authority would not have 
incurred advertising costs had it known 
the true facts. Gulfport-Biloxi Reg'l Air- 
port Auth. V. Montclair Travel Agency, 
Inc., 937 So. 2d 1000 (Miss. Ct. App. 2006). 

Circuit court erred in its application of 
the law when it denied a bank's motion to 
substitute itself as a plaintiff and to dis- 
miss the litigation; the bank purchased 
the lawsuit as a chose in action when a 
summary judgment against a corporation 
was executed, and as such the bank owned 
the lawsuit, and it could substitute itself 
as a party. Citizens Nat'l Bank v. Dixie- 
land Forest Prods., LLC, 935 So. 2d 1004 
(Miss. 2006). 

Even though presented as a summary 
judgment motion, the chancellor's dismis- 
sal of the buyers' complaint for lack of 



200 



RULES OF CIVIL PROCEDURE 



Rule 41 



evidence was best categorized as an invol- 
untary dismissal under Miss. R. Civ. P. 
41(b); although the seller moved for sum- 
mary judgment, he substantively argued 
a motion to dismiss, and the appellate 
court would not hold him in error for that. 
Little V Miller, 909 So. 2d 1256 (Miss. Ct. 
App. 2005). 

Although defendant argued that the 
trial court erred in dismissing his appeal 
because it was dismissed by means of a 
procedure for dismissal of state civil, not 
criminal cases, and the appellate court 
initially agreed that Miss. R. Civ. P. 5 and 
41 applied to civil and not criminal cases; 
an appeal was not perfected until a writ- 
ten notice of appeal and a cost bond were 
filed within 30 days of the judgment ap- 
pealed, such that both a cost and appear- 
ance bond were required in appeals from 
municipal courts, and no Mississippi case 
permitted the filing of the required bonds 
past the 30-day appeal time. Riley v. Town 
of Lambert, 856 So. 2d 721 (Miss. Ct. App. 
2003). 

Trial court properly dismissed former 
university professor's tortious interfer- 
ence with contract claim against the uni- 
versity that formerly employed her and its 
officials because the professor's claim was 
covered by the Mississippi Tort Claims 
Act, Miss. Code Ann. § 11-46-1 et seq.; 
accordingly, the professor had to comply 
with the Act's requirements as it was the 
exclusive remedy for the professor under 
Miss. Code Ann. § 11-46-7(1); further- 
more, the professor's claim was time- 
barred under Miss. Code Ann § 11-46- 
11(3) as it was not timely filed. Black v. 
Ansah, — So. 2d — , 2003 Miss. App. 
LEXIS 502 (Miss. Ct. App. June 3, 2003), 
opinion withdrawn by, substituted opinion 
at 876 So. 2d 395, 2003 Miss. App. LEXIS 
948 (Miss. Ct. App. 2003). 

Where attorneys in trespass action dis- 
covered, on the day of trial, that plaintiffs 
had conveyed property in question to their 
daughter some five months earlier, trial 
court correctly granted plaintiffs' motion 
for a voluntary dismissal, with refiling of 
action conditioned upon payment of defen- 
dants' legal expenses incurred from date 
of conveyance to date of trial. Roebuck v. 
City of Aberdeen, 671 So. 2d 49 (Miss. 
1996). 



Chancellor properly dismissed hus- 
band's request to reduce child support 
payments; husband's admitted failure to 
report cash payments prevented him from 
showing the requisite inability to pay 
awarded aniount of child support, and 
thus husband failed to prove the essential 
element of a material change in circum- 
stances. Herrington v. Herrington, 660 So. 
2d 215 (Miss. 1995). 

Trial court's dismissal of intervener as a 
party defendant did not constitute dismis- 
sal of action, and thus intervener's argu- 
ment that this rule required its consent 
before its dismissal as a party was not 
applicable. Country Club of Jackson, Inc. 
V Saucier, 498 So. 2d 337 (Miss. 1986). 

Abuse of discretion. 

Trial court abused its discretion in dis- 
missing an action for failure to obtain 
counsel, as: (1) there was no factual basis 
to support the entry of the order of dismiss 
all; (2) the procedural requirements were 
not followed and proper notice was not 
permitted by the court's action because 
Miss. R. Civ. P. 6 required that defendants 
give plaintiffs notice of their motion to 
dismiss and at least five days to respond, 
but the court entered an order one day 
after the motion was executed; and (3) 
there was no legal basis to support the 
dismissal because there was no require- 
ment that a party be represented by an 
attorney. Holly v. Harrah's Tunica Corp., 
962 So. 2d 136 (Miss. Ct. App. 2007). 

While an adverse decision in a will 
contest was on appeal, the executor, who, 
acting pro se, had filed the appeal, filed a 
motion for judgment notwithstanding the 
verdict, or in the alternative, for a new 
trial, leading to the chancery court's im- 
position of sanctions; however, the execu- 
tor had filed a notice of withdrawal of the 
motion, and on that same day, the dece- 
dent's daughter's attorney filed a motion 
for sanctions. While it was perhaps debat- 
able whether the executor's motion for a 
new trial was considered an action within 
the meaning of Miss. R. Civ. P. 41(a), it 
was significant that the executor sought a 
dismissal before any responsive pleading 
was filed, thus, the appellate court held 
the chancery court had abused its discre- 
tion in ordering sanctions in the amount 
of $ 1,425, and reduced the amount of 



201 



Rule 41 



MISSISSIPPI COURT RULES 



sanctions significantly. Volmer v. Volmer 
(In re Estate of Volmer), 869 So. 2d 1076 
(Miss. Ct. App. 2004). 

Given the preference for merit-based 
dispositions of disputes, the chancellor 
abused his discretion in dismissing with 
prejudice a petition to establish heirship 
as a sanction for the petitioner's failure to 
return an automobile to the administra- 
trix of the decedent's estate. Smith v. 
Hunter, 736 So. 2d 440 (Miss. Ct. App. 
1999). 

Bench trials. 

On appeal in favor of the son in the 
daughter's action seeking to set aside a 
conveyance of land to the son, the motion 
made in the case was improperly denom- 
inated as a motion for a directed verdict 
under Miss. R. Civ. P. 50(a). In a bench 
trial, the proper motion to make at the 
close of the case-in-chief was a motion for 
involuntary dismissal under Miss. R. Civ. 
P. 41(b). Lynch v. Summerlin (In re 
Summerlin), 989 So. 2d 466 (Miss. Ct. 
App. 2008). 

Dismissal for discovery misconduct. 

Medical malpractice complaint was 
properly dismissed with prejudice be- 
cause, when plaintiffs (1) did not submit 
answers to interrogatories until 435 days 
past the deadline in Miss. R. Civ. P. 
33(b)(3), (2) did not begin discovery until 
almost a year past the deadline in Miss. 
Unif. Cir. & Cty R. 4.04(A), and (3) did not 
reply to the motion to dismiss within ten 
days, under Miss. Unif. Cir. & Cty. R. 
4.03(2), it was unnecessary to show plain- 
tiffs' contumacious conduct, prejudice 
from plaintiffs' unreasonable delay was 
presumed, even though defendants did 
not show witnesses' fading memories and 
no aggravating factors were present, and 
lesser sanctions would not suffice, since 
the case was not an isolated incident of 
one missed deadline or a short, delayed 
response. Holder v. Orange Grove Med. 
Specialties, PA., 54 So. 3d 192 (Miss. 
2010). 

Dismissal of action for discovery mis- 
conduct was proper where requested doc- 
umentation regarding revenues and ex- 
penses was not produced, despite court 
orders, by employee who was alleging im- 
proper termination of his employment. 



and the willfulness and bad faith of the 
employee was clearly demonstrated where 
he refused to answer interrogatories and 
to produce documents for well over one 
year, in the face of at least two court 
orders. Smith v. Tougaloo College, 805 So. 
2d 633 (Miss. Ct. App. 2002). 

Dismissal not warranted. 

Dismissal of the patient's medical-neg- 
ligence action under Miss. R. Civ. P. 41(b) 
was inappropriate because there was no 
clear record of actual prejudice caused to 
the physician or medical center, or even 
that of presumptive prejudice, and the 
delays were solely the result of the negli- 
gence of plaintiff's counsel; thus, the trial 
court erred in its decision to dismiss the 
patient's case with prejudice and should 
have applied lesser sanctions. Holder v. 
Orange Grove Med. Specialties, PA., 54 
So. 3d 244 (Miss. Ct. App. 2010), reversed 
by 54 So. 3d 192, 2010 Miss. LEXIS 640 
(Miss. 2010). 

In a case in which plaintiff filed a peti- 
tion to perpetuate testimony in a circuit 
court, the matter was then removed to 
federal court, wherein plaintiff* sought dis- 
missal, and plaintiff filed a complaint in 
the circuit court raising the same claims 
against the same parties before the fed- 
eral court had dismissed the matter, the 
circuit court erred in dismissing plaintiff's 
post-dismissal complaint because the re- 
cord supported a finding that the federal 
court's dismissal was based upon a "mat- 
ter of form" not affecting the merits — 
namely, a lack of jurisdiction due to the 
absence of a complaint — as its order 
stated that no "civil action" yet existed. 
Plaintiff had inadvertently found himself 
in a procedural quagmire, but he made a 
good-faith effort to preserve his claim, at 
no time envincing an intent to abandon 
his claim, and, accordingly, application of 
the savings statute, Miss. Code Ann. § 15- 
1-69, to his post-dismissal complaint was 
appropriate and consistent with the pur- 
poses of the statute because he filed the 
complaint within one year of the federal 
court's dismissal. Crawford v. Morris 
Transp., Inc., 990 So. 2d 162 (Miss. 2008). 

Because two minor children were old 
enough to express their preference under 
Miss. Code Ann. § 93-11-65, a chancery 
court erred by dismissing a mother's cus- 



202 



RULES OF CIVIL PROCEDURE 



Rule 41 



tody modification request prior to hearing 
from the children; this would have been a 
main source of evidence regarding 
whether or not there was a substantial 
change of circumstances. Anderson v. An- 
derson, 961 So. 2d 55 (Miss. Ct. App. 
2007). 

Trial court erred in dismissing plain- 
tiffs' case without prejudice pursuant to 
Miss. R. Civ. P. 11(a) and 41(b) based on 
the fact that plaintiffs were originally 
represented by a foreign attorney, who 
had not been admitted pro hac vice pur- 
suant to Miss. R. App. P. 46 because a 
subsequent appearance by a member of 
the Mississippi bar cured the error; the 
foreign attorney's violation of Miss. R. 
App. P. 46 and La. St. Bar art. XVI, R. 
5.5(a), which prohibited the unauthorized 
practice of law, warranted sanctions 
against the attorney and notification of 
the violation to the Louisiana state bar. 
Dinet v. Gavagnie, 948 So. 2d 1281 (Miss. 
2007). 

Trial court did not abuse its discretion 
in determining that plaintiffs' letter in 
response to the clerk's motion to dismiss, 
which requested that their personal in- 
jury action against the business not be 
dismissed, constituted an action of record 
such as would preclude a dismissal under 
Miss. R. Civ. P. 41(d); additionally, consid- 
ering the clerk's failure to record or file 
plaintiffs' letter, correctly identify the or- 
der to dismiss, or provide notice to plain- 
tiffs that the order to dismiss was entered, 
the circumstances warranted relief under 
Miss. R. Civ. P. 60(b)(6). Cucos, Inc. v. 
McDaniel, 938 So. 2d 238 (Miss. 2006). 

Mississippi Supreme Court adopted the 
federal test for associational standing; un- 
der that test, the Supreme Court found 
that the trial court erred in dismissing the 
manufactured housing association's bill of 
exceptions regarding the adoption of a 
zoning ordinance and map restricting 
manufactured housing developments in 
the city for lack of standing by the associ- 
ation because (1) one of the association's 
members owned property and managed a 
retail manufacturing housing center in 
the city; (2) the zoning decision would 
have a direct negative economic impact on 
any member of the association that sold 
manufactured homes in the city because 



their buyer's market would be diminished; 
and (3) the association's challenge to the 
city's zoning restrictions was of impor- 
tance to the association's members. Miss. 
Manufactured Hous. Assn v. Bd. of Alder- 
men, 870 So, 2d 1189 (Miss. 2004). 

Trial court had to consider other alter- 
natives before summarily dismissing a 
case, thereby depriving a litigant of his 
rights; a reviewing court was less likely to 
uphold a Miss. R. Civ. P. 41(b) dismissal 
when the lower court did not consider 
alternative sanctions, and the circum- 
stances of the case did not warrant such 
an extreme and harsh remedy as a dismis- 
sal with prejudice. Harvey v. Stone 
County Sch. Dist., 862 So. 2d 545 (Miss. 
Ct. App. 2003). 

Dismissal with prejudice was inappro- 
priate because there was no evidence of 
deliberate carelessness as to require dras- 
tic action, no evidence of prejudice or 
harm to defendant, and no evidence that 
lesser sanctions were considered by the 
court. Hoffman v. Paracelsus Health Care 
Corp., 752 So. 2d 1030 (Miss. 1999). 

Dismissal warranted. 

Trial court did not err in dismissing a 
mother's 1998 medical malpractice action 
with prejudice under Miss. R. Civ. P. 
41(d)(1) for failure to prosecute because 
from September 1999 to November 2002, 
the record was void of any actions by the 
mother to diligently pursue the cause of 
action; the mother was aware that the 
trial court had a duty to orderly dispose of 
the cases on its docket. Stacy v. Johnson, 
25 So. 3d 365 (Miss. Ct. App. 2009). 

Dismissal under Miss. R. Civ. P. 41(b) 
and a finding that the decedent's grand- 
children and his common-law wife's 
granddaughter failed to prove fraud in the 
transfer of title of real property was ap- 
propriate because the grandchildren 
clearly desired to transfer the subject 
property to granddaughter's psychiatrist's 
daughter and the daughter never stated 
that she was the granddaughter's daugh- 
ter. Poe V. Summers, 11 So. 3d 129 (Miss. 
Ct. App. 2009). 

Dismissal under Miss. R. Civ. P. 41(b) 
was warranted in a case alleging undue 
influence because two daughters who par- 
ticipated in a conveyance of property were 
unable to assert that there was any undue 



203 



Rule 41 



MISSISSIPPI COURT RULES 



influence asserted over their father; more- 
over, the evidence did not show that the 
father had a confidential relationship with 
the daughter who received the property. 
The father was not being cared for by the 
daughter who received the conveyances, 
she did not prepare the relevant docu- 
ments, and the deeds at issue contained 
no language indicating that the father 
intended to reserve any rights in the prop- 
erty; in addition, the father was able to 
assist his attorney in his cause of action, 
and a guardian ad litem testified that the 
father was competent and did not require 
his services. Stevens v. Estate of Smith, 19 
So. 3d 764 (Miss. Ct. App. 2009), writ of 
certiorari denied by 19 So. 3d 82, 2009 
Miss. LEXIS 463 (Miss. 2009). 

Dismissal of the passenger's action 
against the driver for personal injuries 
resulting from a car accident was appro- 
priate under Miss. R. Civ. P. 41(b) due to 
the timing of the passenger's continuance 
request; her failure to provide documenta- 
tion to support her mother's testimony; 
and the trial court's explicit instructions 
to the passenger to comply with the order 
or risk dismissal of her case. Wilson v. 
Nance, 4 So. 3d 336 (Miss. 2009). 

Dismissal of a wrongful death suit was 
proper because the great-nephew lacked 
standing to institute a wrongful death suit 
under Miss. Code Ann. § 11-7-13, which 
conferred standing only to a decedent's 
spouse, parent, child, or sibling and not to 
distant relatives; the great-nephew also 
lacked standing because he was not the 
administrator of the decedent's estate 
when the wrongful death suit was com- 
menced, and standing was to be deter- 
mined as of the commencement of the 
action. Delta Health Group, Inc. v. Estate 
of Pope, 995 So. 2d 123 (Miss. 2008). 

Involuntary dismissal under Miss. R. 
Civ. P. 41(b) was warranted because a 
disclaimer provision in a timber removal 
contract protected the Mississippi For- 
estry Commission from liability where the 
timber count was lower than the Commis- 
sion's estimate; moreover, there was no 
negligent misrepresentation, fraud, or 
mistake due to the clear language of the 
disclaimer. Hazlehurst Lumber Co. v. 
Miss. Forestry Comm'n, 983 So. 2d 309 
(Miss. 2008). 



Dismissal without prejudice. 

Trial court did not abuse its discretion 
in dismissing an injured party's claims of 
negligence, defective-design, and faulty 
product-inspection without prejudice, un- 
der Miss. R. Civ. P. 41(b), because it was 
undisputed that no action of record took 
place for 19 months. Hill v. Ramsey, 3 So. 
3d 120 (Miss. 2009). 

Dismissal without prejudice, pursuant 
to Miss. R. Civ. P. 41, of a justice court 
complaint that included a claim for the 
recovery of repair costs did not preclude 
an award of the costs in a subsequent 
declaratory judgment action. Cavagnaro 
V. Coldwell Banker Alfonso Realty, Inc., 
995 So. 2d 754 (Miss. Ct. App. 2008), writ 
of certiorari denied by 997 So. 2d 924, 
2008 Miss. LEXIS 534 (Miss. 2008). 

Failure to prosecute. 

There is no set time limit for the prose- 
cution of an action; a dismissal with prej- 
udice will be affirmed only if there is a 
showing of a clear record of delay or con- 
tumacious conduct by the plaintiff, and 
where lesser sanctions would not serve 
the best interests of justice. The propriety 
of a dismissal with prejudice is bolstered 
by the presence of aggravating factors, 
including: (1) the extent to which the 
plaintiff, as distinguished from his coun- 
sel, was personally responsible for the 
delay, (2) the degree of actual prejudice to 
the defendant, and (3) whether the delay 
was the result of intentional conduct. 
Hillman v. Weatherly, 14 So. 3d 721 (Miss. 
2009). 

Circuit court was within its discretion 
in finding that there was a clear record of 
delay, that the interests of justice required 
no lesser sanction than dismissal with 
prejudice, and that aggravating factors 
were present in the form of the individu- 
al's personal responsibility for the delay 
and actual prejudice to the attorney; 
therefore, the circuit court did not abuse 
its discretion by dismissing the individu- 
al's complaint with prejudice under Miss. 
R. Civ. P. 41(b) for failure to prosecute. 
Hillman v. Weatherly, 14 So. 3d 721 (Miss. 
2009). 

Trial court did not abuse its discretion 
in dismissing an injured party's claims of 
negligence, defective-design, and faulty 
product-inspection without prejudice, un- 



204 



RULES OF CIVIL PROCEDURE 



Rule 41 



der Miss. R. Civ. P. 41(b), because it was 
undisputed that no action of record took 
place for 19 months. Hill v. Ramsey, 3 So. 
3d 120 (Miss. 2009). 

Where plaintiff wrongful death benefi- 
ciary filed a medical malpratice/wrongful 
death suit and failed to pursue the claim 
and where the wrongful death beneficiary 
essentially ignored the court clerk's first 
motion to dismiss for failure to prosecute 
filed five years after the filing of the com- 
plaint, the trial court did not err in grant- 
ing the court clerk's second motion to 
dismiss filed 14 months after its first 
motion because the record established a 
clear history of delay stretching back more 
than five years, the delay presumptively 
prejudiced defendant health care provid- 
ers, and the prejudice suffered by the 
health care providers could not be cured 
through a lesser sanction. Jenkins v. 
Tucker, 18 So. 3d 265 (Miss. Ct. App. 
2009), writ of certiorari denied by 19 So. 
3d 82, 2009 Miss. LEXIS 466 (Miss. 2009). 

Widow's seven-year delay in taking any 
action in her suit against her deceased 
husband's employer other than letters to 
the clerk that were not served on the 
employer as required by Miss. R. Civ. P. 5, 
and an absence of good cause shown for 
the delay, required dismissal of her action 
pursuant to Miss. R. Civ. P. 41(d). 111. 
Cent. R.R. Co. v. Moore, 994 So. 2d 723 
(Miss. 2008). 

Where a son sought to set aside a war- 
ranty deed that transferred property from 
the son's mother to a daughter, the case 
was properly dismissed for failure to pros- 
ecute because, inter alia, (1) there was a 
significant delay during the litigation, (2) 
lesser sanctions were considered, (3) the 
son bore some responsibility for the delay, 
(4) the daughter was prejudiced because 
of their mother's intervening death since 
the purpose of the mother's deposition 
was not to conduct discovery or elicit tes- 
timony for trial, and (5) it was not an 
abuse of discretion to refuse to provide 
specific findings of fact and conclusions of 
law. Cox V. Cox, 976 So. 2d 869 (Miss. 
2008). 

Pursuant to Miss. R. Civ. P. 41(b) and 
(d), the trial court did not err granting the 
doctor's motion and dismissing beneficia- 
ries' case without prejudice for failure to 



prosecute as their conduct could be con- 
sidered dilatory and trial court applied 
two, separate, lesser sanctions. Hasty v. 
Yoshinobu Namihira, 986 So. 2d 1036 
(Miss. Ct. App. 2008), writ of certiorari 
denied by 987 So. 2d 451, 2008 Miss. 
LEXIS 370 (Miss. 2008). 

Inmate's action against prison employ- 
ees, alleging th^t the inmate was negli- 
gently denied proper medical treatment, 
was properly dismissed for want of prose- 
cution pursuant to Miss. R. Civ. P. 41(d) 
where the inmate gave no response to the 
clerk's motion as to why the case should 
not be dismissed; the trial court had no 
choice but to dismiss the action under the 
mandatory "shall dismiss" language of the 
rule. Madison v. Miss. Dep't of Corn, 966 
So. 2d 216 (Miss. Ct. App. 2007). 

Dismissal of a wrongful death case 
based on counsel's failure to attend a 
special docket call was not improper even 
though the trial court erred in calculating 
the time that the case had been pending, 
because very little activity had occurred 
until the dismissal; moreover, the delay 
was caused by the parties bringing the 
suit because the first person filing lacked 
standing, and the second person waited 
until after the statute of limitations had 
expired to file. Tolliver ex rel. Wrongful 
Death Beneficiaries of Green v. Mladineo, 
987 So. 2d 989 (Miss. Ct. App. 2007). 

Dismissal of a medical malpractice case 
under Miss. R. Civ. P. 41 was appropriate 
where no action was taken for four years, 
a first doctor was not served in the time 
required under Miss. R. Civ. P. 4, a patient 
failed to use other means of service avail- 
able, service was not effectuated until the 
statute of limitations had expired, and 
proof of service was not filed until after 
the case was dismissed; there was no need 
to show contumacious conduct because 
there was a clear record of delay, and no 
lesser sanctions would have better served 
the interests of justice since the passage of 
time might have altered the evidence. 
Hensarling v. Holly, 972 So. 2d 716 (Miss. 
Ct. App. 2007), writ of certiorari denied by 
973 So. 2d 244, 2008 Miss. LEXIS 18 
(Miss. 2008). 

Chancellor did not abuse his discretion 
in dismissing homeowners' complaint un- 
der Miss. R. Civ. P. 41(b) for failure to 



205 



Rule 41 



MISSISSIPPI COURT RULES 



prosecute where homeowners admitted 
there had been significant delays and the 
chancellor's statements clearly showed 
that lesser sanctions were considered and 
rejected; also, the presence of aggravating 
factors was not necessary. Although some 
of the delays were caused by external 
factors, including the homeowner's battle 
with terminal kidney cancer and the 
breakup of the homeowners' marriage, the 
delays were not caused solely by illness 
and disability, but were due to a combina- 
tion of factors, including the homeowners' 
financial constraints, which continued. 
Hine v. Anchor Lake Prop. Owners Ass'n, 
911 So. 2d 1001 (Miss. Ct. App. 2005). 

Trial court erred in denying a summary 
judgment motion filed by a casino and its 
employee against the malicious prosecu- 
tion claim filed by certain individuals. The 
individuals' first claim against the casino 
was dismissed for want of prosecution, 
and the savings clause in Miss. Code Ann. 
§ 15-1-69 did not prevent the second 
claim, which was based on the same facts, 
from being barred by the statute of limi- 
tation in Miss. Code Ann. § 15-1-35. Jack- 
pot Miss. Riverboat, Inc. v. Smith, 874 So. 
2d 959 (Miss. 2004). 

Trial court did not err in dismissing the 
driver's claims with prejudice under Miss. 
R. Civ. R 41(b) where since the case was 
filed, the driver had taken virtually no 
positive action to prosecute his claim; the 
driver's failure to promptly act over such a 
lengthy period demonstrated that any fur- 
ther lesser sanctions would have been 
ineffective. Vosbein v. Bellias, 866 So. 2d 
489 (Miss. Ct. App. 2004). 

Where an invitee's responses to a mo- 
tion to compel did not comply with Miss. 
R. Civ. P. 33, the invitee sought late dis- 
covery in violation of Miss. Unif. Cir. & 
County Ct. Prac. R. 4.04, and did not show 
good cause for failing to prosecute after 
two notices of dismissal under Miss. R. 
Civ. P. 41(d), the trial court properly dis- 
missed the lawsuit and denied a motion 
for reconsideration. Guidry v. Pine Hills 
Country Club, Inc., 858 So. 2d 196 (Miss. 
Ct. App. 2003). 

Where the buyer sued defendants re- 
garding defects in a mobile home, and 
buyer's first counsel withdrew, the buyer's 
five-month delay, outside of court's time 



limit for obtaining new counsel, was not 
egregious, defendants did not argue that 
they had suffered any prejudice, and the 
trial court's dismissal for failure to prose- 
cute was error, especially where the trial 
court failed to consider other less severe 
sanctions. Camacho v. Chandeleur 
Homes, Inc., 862 So. 2d 540 (Miss. Ct. 
App. 2003). 

In a contempt proceeding for failure to 
pay child support, although the husband 
had not filed a motion to dismiss, the trial 
court was w^ithin its discretion to raise sua 
sponte the issue of dismissing the petition 
for lack of prosecution. Miss. Dep't of 
Human Servs. v. Guidry, 830 So. 2d 628 
(Miss. 2002). 

In a contempt proceeding for the hus- 
band's failure to pay child support, the 
chancellor abused its discretion in dis- 
missing the petition for contempt with 
prejudice because there was no contuma- 
cious conduct by the wife, no alternative 
sanctions were considered and no aggra- 
vating factors were present as (1) there 
was nothing in the record to suggest that 
the wife, as opposed to her counsel was 
responsible for any of the delays; (2) there 
would be little, if any prejudice to the 
husband, by proceeding to trial; and (3) 
there was nothing in the record to indicate 
the delay was an intentional attempt to 
abuse the judicial process. Miss. Dep't of 
Human Servs. v. Guidry 830 So. 2d 628 
(Miss. 2002). 

Trial court abused its discretion in dis- 
missing a case for failure to prosecute, 
because the delay was not intentional or 
due to the contumacious conduct by the 
plaintiff or his counsel, the defendant was 
not unduly prejudiced, and a less drastic 
sanction was not considered by the court. 
Tims V. City of Jackson, 823 So. 2d 602 
(Miss. Ct. App. 2002). 

An action was properly dismissed under 
subsection (d) where (1) the plaintiff did 
not make a motion for entry of default 
judgment until May 1995, and the default 
was given to him on June 8, 1995, (2) the 
defendant then filed a motion in a timely 
manner to set aside the default judgment, 
(3) the plaintiff answered, but did not 
fight the motion, (4) when the motion was 
dismissed as stale, the defendant had it 
reinstated within the time allowed, (5) 



206 



RULES OF CIVIL PROCEDURE 



Rule 41 



when the motion was finally heard, the 
judge found cause for the default judg- 
ment to be set aside, and (6) it was then up 
to the plaintiff to prosecute the case, but 
he did nothing further until nine months 
after the case had again been dismissed as 
stale, and 18 months after the default 
judgment had been set aside. Cooley v. 
Burge, 797 So. 2d 294 (Miss. Ct. App. 
2001). 

Conduct of counsel for the plaintiff can 
not be said to clearly constitute delay or 
contumacious conduct, notwithstanding 
that three terms of the circuit court 
passed without action by counsel for 
plaintiff where (1) the first full term of 
court following the filing of the action was 
avoided due to the defendants' motion to 
extend discovery, and (2) the second term 
was avoided, at least in part, due to the 
inability of counsel for defendants to ap- 
pear at the docket call. AT & T v. Days Inn, 
720 So. 2d 178 (Miss. 1998). 

Ajudgment dismissing a stale case may 
be set aside during the same term of court, 
just as any other judgment; however, the 
judgment becomes final and may not be 
set aside after the term. Town of 
Winstonville v. Demco Distrib. Co., 630 So. 
2d 40 (Miss. 1993). 

Notice of motion to dismiss for want of 
prosecution was not given to plaintiffs or 
even to their last attorney of record, as 
required by rule; due to clerk's mistake, 
lower court should have allowed case to be 
reinstated. Walker v. Parnell, 566 So. 2d 
1213 (Miss. 1990). 

Findings. 

Miss. R. Civ. P. 41(b) makes specific 
findings of fact and conclusions of law 
discretionary with the trial court. Cox v. 
Cox, 976 So. 2d 869 (Miss. 2008). 

Even though there were no findings of 
fact regarding whether a trial court con- 
sidered lesser sanctions before dismissing 
a medical malpractice case under Miss. R. 
Civ. R 41(b), the findings were presumed. 
Hensarhng v. Holly, 972 So. 2d 716 (Miss. 
Ct. App. 2007), writ of certiorari denied by 
973 So. 2d 244, 2008 Miss. LEXIS 18 
(Miss. 2008). 

Involuntary dismissal under Miss. R. 
Civ. P. 41(b) was properly entered in a 
dispute over a family business because a 
purported owner failed to establish a 



prima facie case that he was entitled to 
one-half of the business; therefore, it was 
unnecessary to determine the legal status 
of the business at the time of a father's 
death. Milligan v. Milligan, 956 So. 2d 
1066 (Miss. Ct. App. 2007). 

When trial judge grants a motion to 
dismiss at close of plaintiff's case, he 
should enter into record his findings of 
fact and conclusions of law; failure to do so 
leaves appellate court in position of hav- 
ing to guess at trial judge's reason for 
granting motion, and may result in find- 
ing of manifest error when in truth there 
was none. Davis v. Clement, 468 So. 2d 58 
(Miss. 1985). 

Reinstitution of cases. 

Trial court had the authority to dismiss 
the customer's case against the restau- 
rant where the customer waited too long 
to file his motion to reinstate the case and 
he provided no evidence that the trial 
court's dismissal was defective or the re- 
sult of fraud, accident, or mistake. Mar- 
shall V. Burger King, 2 So. 3d 702 (Miss. 
Ct. App. 2008). 

Dismissed cases may be reinstituted, 
except in extreme situations. Taylor v. 
GMC, 717 So. 2d 747 (Miss. 1998). 

Requirements. 

Consideration of lesser sanctions can- 
not be presumed, but there should be 
some indication in the record that lesser 
sanctions were considered. Cox v. Cox, 976 
So. 2d 869 (Miss. 2008). 

Where a foreign attorney failed to sub- 
mit and file an informational affidavit 
setting forth certain requirements con- 
tained in M.R.A.P. 46(b)(4)(i- xi), the trial 
court had no choice but to strike the 
plaintiff's complaint and dismiss the case 
pursuant to M.R.A.P. 41(b) for failure to 
comply with court rules. Taylor v. GMC, 
717 So. 2d 747 (Miss. 1998). 

In granting motion to dismiss made 
under subdivision (b) of this rule, trial 
court should consider evidence fairly, as 
distinguished from in the light most favor- 
able to plaintiff, and court should dismiss 
case if it would find for the defendant; 
thus, appellate review of chancellor's de- 
cision to dismiss claim is limited to ascer- 
taining whether record reveals substan- 
tial evidence to support trial court's 



207 



Rule 41 



MISSISSIPPI COURT RULES 



findings in support of its decision. Singing 
River Elec. Power Ass'n v. State ex rel. 
Miss. Dep't of Envtl. Quality, 693 So. 2d 
368 (Miss. 1997). 

Proper motion for defendant to make at 
the close of plaintiffs' case was a motion to 
dismiss pursuant to M.R.C.P. Rule 41(b), 
rather than Rule 12(b)(6); under Rule 
41(b), judge must consider the evidence 
fairly, rather than in the light most favor- 
able to the plaintiff. Century 21 Deep S. 
Properties, Ltd. v. Corson, 612 So. 2d 359 
(Miss. 1992). 

When considering motion under subdi- 
vision (b) of this rule, trial judge considers 
plaintiff's evidence fairly, instead of in 
light most favorable to plaintiff; if trial 
court finds that evidence is insufficient to 
meet requisite burden of proof or to prove 
one or more key elements of plaintiff's 
claim, trial court should render judgment 
in favor of defendant, and if there is doubt, 
motion should be denied. Amyotte v. Hol- 
lingsworth, 585 So. 2d 731 (Miss. 1991). 

Dismissal for failure to comply with a 
court order is appropriate only where 
there is a clear record of delay or contu- 
macious conduct and lesser sanctions 
would not serve the best interests of jus- 
tice; dismissal with prejudice is an ex- 
treme and harsh sanction that deprives 
litigant of opportunity to pursue his claim, 
and it is therefore reserved for the most 
egregious cases. Wallace v. Jones, 572 So. 
2d 371 (Miss. 1990). 

Under subdivision (b) of this rule, if 
when considering evidence fairly, as dis- 
tinguished from in light most favorable to 
plaintiff, trial judge would find for defen- 
dant — because plaintiff has failed to 
prove one or more essential elements of 
his claim, because quality of proof offered 
is insufficient to sustain burden of proof 
cast upon plaintiff, or for whatever rea- 
son — the proceeding should be halted at 
that time and final judgment should be 
rendered in favor of defendant. Smith v. 
Smith, 574 So. 2d 644 (Miss. 1990). 

When considering whether dismissal 
should be granted, trial court must con- 
sider effect on defendant and any other 
plaintiffs, and must assure fairness and 
protection for those affected; since a dis- 
missal under subdivision (a) of this rule is 
without prejudice unless order states oth- 



erwise, trial court should grant a volun- 
tary dismissal unless some legal prejudice 
occurs. Carter v. Clegg, 557 So. 2d 1187 
(Miss. 1990). 

When opposing a motion for dismissal 
pursuant to subdivision (a) of this rule, it 
is defendant's responsibility to demon- 
strate that dismissal will cause some legal 
prejudice; defendant can not demonstrate 
legal prejudice simply by reljdng on pros- 
pect of another lawsuit, or by showing 
that dismissal will result in tactical ad- 
vantage for plaintiff. Carter v. Clegg, 557 
So. 2d 1187 (Miss. 1990). 

Trial court erred in granting plaintiff's 
motion for voluntary dismissal, and dis- 
missing her complaint without prejudice, 
without giving defendant reasonable ad- 
vance notice and an opportunity to be 
heard on the motion. Bolls v. Harris, 528 
So. 2d 1128 (Miss. 1988). 

Where motion for involuntary dismissal 
is presented to trial judge sitting without 
a jury, court is not required to look at 
evidence in light most favorable to plain- 
tiff, giving plaintiff benefit of all reason- 
able favorable inferences, and standards 
applicable to motions for directed verdict 
or judgment notwithstanding the verdict 
do not apply. Mitchell v. Rawls, 493 So. 2d 
361 (Miss. 1986). 

Voluntary dismissal should generally be 
permitted unless prejudice to a party will 
occur, other than prospect of another law- 
suit, since dismissal under this rule is 
without prejudice unless order states oth- 
erwise. Hudson V. Bank of Edwards, 495 
So. 2d 1349 (Miss. 1986). 

If, considering evidence fairly, as distin- 
guished from in light most favorable to 
plaintiff, trial judge would find for defen- 
dant — because plaintiff" has failed to 
prove one or more essential elements of 
his claim, because quality of proof offered 
is insufficient to sustain burden of proof 
cast upon plaintiff, or for whatever rea- 
son — the proceeding should be halted at 
that time and final judgment should be 
rendered in favor of defendant. Davis v. 
Clement, 468 So. 2d 58 (Miss. 1985). 

Res judicata. 

Chancellor properly granted trustee's 
requested dismissal under subdivision (b) 
of this rule, as action contesting power of 
trustee to harvest timber from certain real 



208 






RULES OF CIVIL PROCEDURE 



Rule 42 



property was barred by doctrine of res 
judicata. Davis v. Deposit Guar. Nat'l 
Bank, 674 So. 2d 1254 (Miss. 1996). 

Review. 

After the trial court refused to dismiss 
the individuals' lawsuit against the rail- 
road, wherein they claimed that they were 
damaged by exposure to various toxic sub- 
stances, the appellate court denied the 
railroad's petition to appeal from an inter- 
locutory order of the trial court, and a 
request for a stay because the amended 
complaints provided the railroad with suf- 
ficient notice of each of the individuals' 
claims, including the place, period of time, 
and instrumentality, asbestos and silica, 
of alleged injury, and were sufficient to 
meet minimum notice pleading require- 
ments. 111. Cent. R.R. Co. v. Easterwood, 
939 So. 2d 769 (Miss. 2006). 

In her wrongful death action, the preg- 
nant employee claimed that the employ- 
er's failure to maintain and repair the 
elevator caused the malfunction that led 
to an additional 10 minute delay in her 
arrival at the hospital, and that the delay 
contributed to and was the proximate 
cause of her child's death. However, the 
testimony of her own expert showed that 
even with said delay, the child's survival 
was contingent upon being delivered 
within 30 minutes of a placental 
abruption, and even with said delay, the 
employee would not have arrived at the 
hospital in 30 minutes given the other 
facts; thus, the trial court properly 
granted the city's motion to dismiss under 
Miss. R. Civ. P. 41(b). Sanders v. Riverboat 
Corp., 913 So. 2d 351 (Miss. Ct. App. 
2005). 

In a bench trial, the trial court properly 
dismissed plaintiffs' wrongful death suit 
on the merits (though defendant's motion 
was improperly made under Miss. R. Civ. 
P. 50), finding that defendant driver 
breached no duty to a pedestrian he 



struck and killed as she was walking near 
an entrance ramp; the driver was travel- 
ing at prudent speed, keeping proper look- 
out for traffic while preparing to merge, 
and the pedestrian was in his lane of 
travel when, she was hit. Partlow v. Mc- 
Donald, 877 So. 2d 414 (Miss. Ct. App. 
2003), cert, denied, 878 So. 2d 66 (Miss. 
2004). 

Dismissal of the driver and passengers' 
action against the city and police officer 
pursuant to Miss. R. Civ. P. 41(b) after 
they were struck by the officer's vehicle 
was proper where the officer's action 
evinced no recklessness; he was remiss in 
paying attention to traffic directly in his 
lane, but was guilty of simple negligence 
and nothing more. Joseph v. City of Moss 
Point, 856 So. 2d 548 (Miss. Ct. App. 
2003), cert, denied, 860 So. 2d 315 (Miss. 
2003). 

Where a defending or responding party, 
following the overruling of a motion for a 
directed verdict or a motion to dismiss, 
goes forward with evidence of his own, he 
waives the right to assign on appeal error 
in the failure of the trial judge to grant his 
motion. Clements v. Young, 481 So. 2d 263 
(Miss. 1985). 

Waiver. 

Where defendants' motion to dismiss 
was made at conclusion of plaintiff's case, 
and after chancery court denied the mo- 
tion defendants went forward with proof 
of their own, they waived the right to urge 
error in denial of their motion to dismiss. 
Stallings v. Bailey, 558 So. 2d 858 (Miss. 
1990). 

What eonstitues "application in writ- 
ing." 

"Application in writing" for purposes of 
avoiding dismissal under Miss. R. Civ. P. 
41(d) was required to be in the form of a 
motion to the court under Miss. R. Civ. P. 
7. 111. Cent. R.R. Co. v. Moore, 994 So. 2d 
723 (Miss. 2008). 



Rule 42. Consolidation: separate trials. 

(a) Consolidation. When actions involving a common question of law or fact 
are pending before the court, it may order a joint hearing or trial of any 
matters in issue in the actions; it may order all the actions consolidated; and 
it may make such orders concerning proceedings therein as may tend to avoid 
unnecessary costs or delay. 



209 



Rule 42 



MISSISSIPPI COURT RULES 



(b) Separate trial. The court, in furtherance of convenience or to avoid 
prejudice, or when separate trials will be conducive to expedition and economy, 
may order a separate trial of any claim, cross-claim, counter-claim, or third- 
party claim, or of any separate issue or of any number of claims, cross-claims, 
counter-claims, third-party claims, or issues, always preserving inviolate the 
right of trial by jury as declared by Section 31 of the Mississippi Constitution 
of 1890. 

COMMENT 



The purpose of Rule 42 is to give the 
court broad discretion to decide how cases 
on its docket are to be tried so that the 
business of the court may be dispatched 
with expedition and economy while pro- 
viding justice to the parties. To this end, 
Rule 42(a) permits consolidation and a 
single trial of several cases on the court's 
docket, or of issues within those cases, 
while Rule 42(b) allows the court to order 
separate trials of particular issues within 
a single case. 

Consolidation of actions presenting a 
common issue of law or fact is permitted 
as a matter of trial convenience and judi- 
cial economy. The court is given broad 
discretion to decide whether consolidation 
would be desirable; the consent of the 
parties is not required. It is for the court 
to weigh the savings of time and effort 
that consolidation would produce against 
any inconvenience, delay, or expense that 
it would cause. 

Although the courts take a favorable 
view of consolidation, the mere fact that a 
common question is present, and that con- 
solidation is therefore permissible under 
Rule 42(a), does not mean that the court 
must order consolidation. Consolidation 
may be denied if the common issue is not 
a central one, or if consolidation will cause 
delay, or will lead to confusion or preju- 
dice. In exercising its discretion to consol- 
idate cases or particular issues, the court 
must recognize that on some issues con- 
solidation may be prejudicial. To avoid 
prejudice, consolidation should be invoked 
only where the issues of law or fact justi- 
fying consolidation predominate over indi- 
vidual issues which will be heard in the 
consolidated proceedings. The additional 
expense that consolidation may cost to 
some of the parties is a factor to be con- 



sidered though it is not necessarily conclu- 
sive. A motion to consolidate may be made 
as soon as the issues become apparent, 
even though not yet formally joined. A 
motion is not required, however, since the 
court may order consolidation on its own 
motion. Separate cases should not be 
jointly considered without an order of con- 
solidation. [Comment amended February 
20, 2004.] 

Consolidation is not new to Mississippi 
practice. See Vicksburg Chemical Co. v. 
Thornell, 355 So.2d 299 (Miss. 1978) (ob- 
ject of consohdating actions is to avoid a 
multiplicity of suits, to prevent delay, to 
clear congested dockets, to simplify the 
work of the trial court, and to save numer- 
ous costs and expenses); Planter's Oil Mill 
V. Yazoo & M. V.R.R. Co., 153 Miss. 712, 
717-18, 121 So. 138, 140 (1929) (proper 
conditions existing, the court may consol- 
idate actions on its own motion or on the 
motion of either party); Stoner v. Colvin, 
236 Miss. 736, 748-49, 110 So.2d 920, 924 
(1959) (courts posses an inherent power to 
consolidate appropriate actions); V. Grif- 
fith, Mississippi Chancery Practice, § 506 
(2d ed. 1950) (consolidation by agreement 
entered on record by solicitors of parties, 
or by motion of any party, or by the court 
of its own motion; court has duty to con- 
solidate appropriate actions). The court 
has complete discretion within the bounds 
of justice and its jurisdiction to consoli- 
date whatever issues it deems expeditious 
or economical to consolidate. Stoner v. 
Colvin, supra (trial court in its sound 
discretion has a right to consolidate for 
trial separate actions by different plain- 
tiffs against common defendants for dam- 
ages arising out of the same accident; this 
rule applies to both law and equity ac- 
tions); Columbus & G. Ry. Co. v. Missis- 



210 



RULES OF CIVIL PROCEDURE 



Rule 42 



sippi Clinic, 152 Miss. 869, 871, 120 So.2d 
187, 188 (1929) (consolidation in court of 
law, of two separate actions on appeal 
from justice of the peace court, where 
interests of expediency and economy 
would be served, merges several actions 
into one action with but one judgment); 
but See Stoner v. Colvin, supra (in court of 
law separate instructions were rendered 
in two actions which had been consoli- 
dated for trial); and Elliott v. Harrigill, 
241 Miss. 877, 882, 133 So.2d 612, 614 
(1961) (consolidation of causes in equity 
does not make parties to one cause parties 
to the oth er, and separate decrees are 
entered, unless the nature of matters be 
such that it is clearly proper to include 
them in one decree); V. Griffith, supra 
§ 506 (equity cases preserve identity of 
the causes, pleadings are carried on as if 
no consolidation had arisen, and separate 
decrees are issued); Wilborn v. Wilborn, 
258 So.2d 804, 806 (Miss. 1972) (refusal to 
consolidate divorced wife's citation for 
contempt and husband's petition to mod- 
ify child support decree was within court's 
discretion). The granting or denying of an 
order of consolidation is not a final judg- 
ment and thus is not appealable. See Miss. 
Code Ann. § 11-51-3 (1972) (final judg- 
ments or decrees appealable). 

Rule 42(b) allows the courts to order a 
separate trial of any claim, cross-claim, 
counter-claim, or third-party claim, or of 
any separate issue or of any number of 
claims or issues. The court may do so in 
furtherance of convenience or to avoid 
prejudice, or when separate trials will be 
conducive to expedition and economy. The 
procedure authorized by Rule 42(b) may 
be distinguished from severance under 
Rule 21 as follows: Separate trials will 
usually result in one judgment; but sev- 
ered claims become entirely independent 
actions to be tried and judgment will be 
entered thereon independently. 

The provision for separate trials in Rule 
42(b) is intended to further convenience, 
avoid delay and prejudice, and serve the 
ends of justice. It is the interest of efficient 
judicial administration that is to be con- 
trolling, rather than the wishes of the 
parties. The piecemeal trial of separate 
issues in a single suit is not to be the usual 
course. It should be resorted to only in the 



exercise of informed discretion when the 
court believes that separation will achieve 
the purposes of the rule. 

If a single issue could be dispositive of 
the case, and resolution of it might make 
it unnecessary to try the other issues, 
separate trial of that issue may be desir- 
able to save the time of the court and 
reduce the expenses of the parties. If, 
however, the preliminary and separate 
trial of an issue will involve extensive 
proof and substantially the same facts as 
the other issues, or if any saving in time 
and expense is wholly speculative, a sep- 
arate trial should be denied. A separate 
trial may also be ordered to avoid preju- 
dice, as where evidence admissible only on 
a certain issue may prejudice a party in 
the minds of the jury on other issues. For 
example, this principle may be applied, 
and a separate trial ordered though a 
single trial would otherwise be preferable, 
because in a single trial the jury would 
learn that defendant is insured. The pos- 
sibility of such prejudice, however remote, 
justifies a separate trial if the issues are 
so unrelated that there is no advantage in 
trying them together. But if the issues are 
related, there is considerable authority to 
the effect that jurors today assume the 
presence of insurance, that knowledge of 
the fact of insurance is therefore not prej- 
udicial, and that a separate trial should 
not be ordered. 

Ultimately the question of separate tri- 
als should be, and is, within the discretion 
of the trial court. It must weigh whether 
one trial or separate trials will best serve 
the convenience of the parties and court, 
avoid prejudice, and minimize expense 
and delay. The major consideration, of 
course, must be which procedure is more 
likely to result in a just, final disposition 
of the litigation. 

Any party may move for a separate 
trial. The motion may properly be made at 
a pre-trial conference; a motion is not 
required, however. The court may order a 
separate trial on its own motion. See Sher- 
man V. Stewart, 216 Miss. 549, 556, 62 
So.2d 876, 877-78 (1953) (although the 
submission for one trial of the issues of 
accord and satisfaction and the denial of 
the debt would have been better, the ques- 
tion of separate trials is a question within 



211 



Rule 42 



MISSISSIPPI COURT RULES 



the sound discretion of the trial judge); 
Christopher v. Brown, 211 Miss. 322, 329, 
51 So.2d 579, 582 (1951) (to prevent un- 
due expense and loss of time and delay, 
discretion is vested in the trial judge to 
determine when and in what cases sepa- 
rate hearings may be had). An example is 
when a single issue could dispose of the 
case and make trial of the other issues 
unnecessary. See Miss. Code Ann. § 11- 
7-59 (1972) (defense which used to be set 
up in a plea but is set up in the answer in 



such a manner as to be clearly distinct 
and readily separable, and which goes to 
the entire cause of action, may on motion 
of either party be separately disposed of 
before the principal trial of the cause, in 
the sound discretion of the court). As with 
MRCP 42(a), an order granting or den5dng 
separate trials under 42(b) is not appeal- 
able as a final judgment. See 9 Wright & 
Miller, Federal Practice and Procedure, 
Civil §§ 2381-2392 (1971); 5 Moore's Fed- 
eral Practice \l 42.02-.03 (1974). 



JUDICIAL DECISIONS 



In general. 
Bifurcation. 

Bifurcation appropriate. 
Construction with other rules. 

In general. 

Chancellor did not abuse her discretion 
in consolidating the two cases where tes- 
timony from key witnesses that was rele- 
vant to both suits included the nature and 
value of the business, the ownership and 
relevance of the land, and the relationship 
between the shareholder's wife and the 
various employees. Cooper v. Winnie 
Gilder & Cooper Gilder, Inc., 2009 Miss. 
App. LEXIS 219 (Miss. Ct. App. Apr. 21, 
2009), dismissed by 2010 Miss. LEXIS 264 
(Miss. May 27, 2010). 

In a civil suit following an automobile 
accident in which both parties had the 
same liability insurer, the trial court 
abused its discretion under Miss. R. Civ. P. 
42 by denying appellant's motion to sever 
appellant's breach of contract and bad 
faith claims against the insurer from ap- 
pellee's property damages and medical 
claims against the insurer; appellant 
would be unduly prejudiced because the 
fact that she had liability insurance would 
be placed squarely before the jury in vio- 
lation of Miss. R. Evid. 411. Hegwood v. 
Wilhamson, 949 So. 2d 728 (Miss. 2007). 

Intervener cited Miss. R. Civ. P. 42(a) for 
the proposition that equity cases pre- 
served identity of the causes, pleadings 
were carried on as if no consolidation had 
arisen, and separate decrees were to be 
issued; however, the intervener failed to 
recognize the exception that separate de- 
crees were required in consolidated cases 



unless the nature of the matters be such 
that it was clearly proper to include them 
in one decree. Hayes v. Leflore County Bd. 
of Supervisors, 935 So. 2d 1015 (Miss. 
2006). 

Where trial court ordered two separate 
actions consolidated for all purposes, with 
full acquiescence and consent of each in- 
terested party, any matter could be prop- 
erly presented, litigated and decided if it 
lay within the scope of either action. 
White V. Gautier Util. Dist., 465 So. 2d 
1003 (Miss. 1985). 

Bifurcation. 

Trial court abused its discretion in not 
allowing a trial to be bifurcated in a con- 
tractor's action against a subcontractor 
and an insurance company, pursuant to 
Miss. R. Civ. P 42 and Miss. R. Evid. 411, 
because the comment to Miss. R. Civ. P. 42 
authorized a separate trial to avoid prej- 
udice such as here where the jury would 
learn that the subcontractor was insured, 
and the issue of the amount of damages 
the contractor or subcontractor might owe 
one another was completely unrelated to 
the issues of whether there was insurance 
coverage provided by the insurance com- 
pany. Capital City Ins. Co. v. G.B. 'Boots' 
Smith Corp., 889 So. 2d 505 (Miss. 2004). 

Trial court did not err in granting re- 
quest for bifurcation of trial into separate 
liability and damages components; al- 
though some evidence relevant to dam- 
ages was reviewed in liability phase, bi- 
furcation avoided needless complexity, 
expense and delay, and possible confusion 
to jury, without prejudicing either party. 
Terrain Enters., Inc. v. Mockbee, 654 So. 
2d 1122 (Miss. 1995). 



212 



RULES OF CIVIL PROCEDURE 



Rule 43 



Trial court in medical malpractice ac- 
tion abused its discretion in severing 
plaintiff's claims against a second physi- 
cian, where those claims involved the 
same nucleus of common facts and arose 
from the same transaction or occurrence. 
Kiddy v. Lipscomb, 628 So. 2d 1355 (Miss. 
1993). 

Where trial court's decision to sever 
claims against insurance company rested 
on an erroneous decision on a matter of 
law, its decision on severance was errone- 
ous as well, since claims were highly in- 
tertwined. Necaise v. U.S.A.A. Casualty 
Co., 644 So. 2d 253 (Miss. 1992). 

Bifurcation appropriate. 

All parties elected for strategic reasons 
to try both the bad-faith claim and the 
breach-of-contract/indemnity cases to- 
gether, making full disclosure to the jury 
of the settlement agreement between the 
employer and the employee; the case pre- 
sented multiple legal theories, and the 
result was a completely confused jury. 
Ultimately, there was no way the two 
verdicts could be reconciled, as they cre- 
ated an uncertainty that was fundamen- 
tally unacceptable; after careful consider- 
ation, the appropriate remedy was 
determined to be to vacate both judg- 
ments and remand the case for a new 



trial. Gallagher Bassett Servs. v. Malone, 
30 So. 3d 301 (Miss. 2010). 

Construction with other rules. 

Where plaintiffs, numerous former and 
present employees, sued defendant, a rail- 
road company, for occupational lung dis- 
ease (all but one plaintiff residing outside 
of Tunica County, Mississippi, where the 
suit was filed, and some plaintiffs residing 
in Tennessee), primarily due to alleged 
exposure to asbestos, the railroad com- 
pany successfully argued that joinder was 
improper because their employment con- 
sisted of work in different crafts at differ- 
ent work sites during different periods of 
time, and there was no transaction or 
occurrence or "distinct litigable event" 
common to all plaintiffs. Moreover, all 
claims against out-of-state defendants 
based on causes of action that accrued out 
of state were dismissed based on forum 
non conveniens, and all other plaintiffs' 
claims had to be severed from those of the 
Tunica County resident, including claims 
of plaintiffs who alleged exposure in Tu- 
nica County; all cases that could not be 
brought individually in Tunica County 
were to be transferred to a venue in which 
each plaintiff could have originally 
brought his or her claim, as required by 
Miss. R. Civ. P. 82(d). 111. Cent. R.R. Co. v. 
Gregory 912 So. 2d 829 (Miss. 2005). 



RESEARCH REFERENCES 



Law Reviews — Litigation in Missis- 
sippi Today: A Symposium: Class Actions 
& Joinder in Mississippi, 71 Miss. L.J. 
447, Winter, 2002. 

Now Open for Business: The Transfor- 
mation of Mississippi's Legal Climate, 24 
Miss. C. L. Rev. 393, Spring, 2005. 



State Court Class Actions in Missis- 
sippi: Why Adopt Them Now?, 24 Miss. C. 
L. Rev. 437, Spring, 2005. 



Rule 43. Taking of testimony. 

(a) Form and admissibility. In all trials the testimony of witnesses shall be 
taken orally in open court, unless otherwise provided by these rules or the 
Mississippi Rules of Evidence. 

(b) [Abrogated]. 

(c) [Abrogated]. 

(d) Affirmation in lieu of oath. Whenever under these rules an oath is 
required to be taken, a solemn affirmation may be accepted in lieu thereof. 

(e) Evidence on motions. When a motion is based on facts not appearing of 
record the court may hear the matter on affidavits presented by the respective 



213 



Rule 43 



MISSISSIPPI COURT RULES 



parties, but the court may direct that the matter be heard wholly or partly on 
oral testimony or depositions. 

(f) Interpreters. The court may appoint an interpreter of its own selection 
and may fix his reasonable compensation. The compensation shall be paid out 
of funds provided by law or by one or more of the parties as the court may direct 
and may be taxed ultimately as costs, in the discretion of the court. However, 
in the event and to the extent that such interpreters are required to be 
provided under the provisions of the Americans with Disabilities Act, 42 U.S. 
C. § 12131, e^ seq. or under rules or regulations promulgated pursuant thereto, 
such compensation and other costs of compliance shall be paid by the county in 
which the court sits, and shall not be taxed as costs. (Amended effective 
January 10, 1986; amended June 5, 1997.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective July 1, 1998, Rule 43(f) was 
amended in regard to compliance with the 
Americans with Disabilities Act, 42 U.S.C. 
§ 12131, et seq. 

Effective January 10, 1986, Rule 43(a) 
was amended to provide that testimony 
may be taken other than in open court, as 



provided by the Mississippi Rules of Evi- 
dence, and to delete references to the 
admissibility of evidence; Rule 43(b) 
[Mode and Order of Interrogation], and 
Rule 43(c) [Record of Excluded Evidence] 
were abrogated. 478-481 So. 2d XXVII 
(West Miss. Gas. 1986). 



COMMENT 



Rule 43 is patterned in part after Fed- 
eral Rule 43. Implicit in Rule 43 is a 
recognition of the controlling power of the 
Mississippi Rules of Evidence, which be- 
came effective January 1, 1986. 

The admission of telephonic testimony 
in lieu of a personal appearance in open 
court by the witness is within the sound 
discretion of the trial court. Byrd v. Nix, 
548 So.2d 1317 (Miss.1989). 

Rules 43(b) and 43(c), which were orig- 
inally adopted by the Supreme Court of 
Mississippi in 1981, have been abrogated 
by the later adoption of the Mississippi 
Rules of Evidence. The contents of former 
Rule 43(b)(1) are now found in Rule 611(a) 
of the Mississippi Rules of Evidence. For- 
mer Rule 43(b)(2) corresponds to Rule 
611(b) of the Mississippi Rules of Evidence 
and former Rule 43(b)(3) is now found in 
Rule 611(c). Former Rule 43(b)(4) had 
previously abolished the voucher rule in 
civil cases. Rule 607 of the Mississippi 
Rules of Evidence completes the abolition 
of the voucher rule by abolishing the rule 
in criminal cases. 

Rule 43(c), which pertained to an offer 
of proof, has been abrogated. Rules 



103(a)(2), 103(b), and 103(c) of the Missis- 
sippi Rules of Evidence now govern. 

Rule 43(d) provides that whenever an 
oath is required to be taken, a solemn 
affirmation may be accepted in lieu of the 
oath. This is in accordance with tradi- 
tional Mississippi practice. This rule is 
consistent with Rule 603 of the Missis- 
sippi Rules of Evidence. 

Rule 43(e) provides that motions based 
on facts not appearing of record may be 
heard on affidavit, although the court re- 
tains power to direct that they be heard 
wholly or partly on oral testimony or de- 
positions. Thus the court may rely on 
affidavit on a motion to dismiss, a motion 
to quash service of process, a motion chal- 
lenging the jurisdiction of the court, a 
motion for summary judgment, or a mo- 
tion for a new trial. 

The provision that the court may direct 
that motions be heard in whole or in part 
on oral testimony or depositions is permis- 
sive and not mandatory. Motions are usu- 
ally decided on the papers rather than 
after oral testimony of witnesses. Al- 
though oral testimony may be heard on a 



214 



RULES OF CIVIL PROCEDURE Rule 44 

motion for summary judgment, the court provided by law or by one or more of the 

need not allow this, and its authority to do parties as the court may direct, and may 

so should be exercised with care. The be taxed ultimately as cost in the discre- 

purpose of summary judgment — i. e. tion of the court. 

giving a speedy adjudication in cases that An interpreter should be qualified by 

present no genuine issue of fact — is knowledge, skill, experience, training, or 

defeated if the hearing on the motion education to act in that capacity. He 

becomes a preliminary trial. 9 Wright & should take an oath or affirmation that he 

Miller, supra 2416. will make a true translation. 9 Wright & 

Rule 43(f) allows the court to appoint an Miller, supra 24:11 . 

interpreter of its own selection. The rule Rule 43(f) should be read in conjunction 

speaks in general terms and gives the with Rule 604 of the Mississippi Rules of 

court discretion to determine when it is Evidence. 

appropriate to appoint an interpreter. The [Amended effective January 10, 1986; 

compensation is to be paid out of funds March 13, 1991.] 

JUDICIAL DECISIONS 

Telephonic testimony. health due to diabetes, hypertension, and 
The chancellor did not abuse his discre- a nervous condition, but produced no 
tion in disallowing telephonic testimony other documentation or testimony sup- 
where the petitioner testified that his porting his motion. Smith v. Hunter, 736 
mother, who lived in Arizona, was in poor So. 2d 440 (Miss. Ct. App. 1999). 

Rule 44. Proof of documents. 

(a) Authentication. 

(1) Domestic. An official record kept within the United States or any state, 
district, commonv^ealth, territory, or insular possession thereof, or within the 
Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu 
Islands, or an entry therein, when admissible for any purpose, may be 
evidenced by an official publication thereof or by a copy attested by a person 
purporting to be the officer having the legal custody of the record, or his deputy. 
If the official record is kept outside the State of Mississippi, the copy shall be 
accompanied by a certificate under oath of such person that he is the legal 
custodian of such record and that the record is kept pursuant to state law. 

(2) Foreign. A foreign official record, or an entry therein, when admissible 
for any purpose, may be evidenced by an official publication thereof, or a copy 
thereof, attested by a person authorized to make the attestation, and accom- 
panied by a final certification as to the genuineness of the signature and official 
position (i) of the attesting person or (ii) of any foreign official whose certificate 
of genuineness of signature and official position relates to the attestation or is 
in a chain of certificates of genuineness of signature and official position 
relating to the attestation. A final certification may be made by a secretary of 
an embassy or legation, consul general, consul, vice consul, or consular agent 
of the United States, or a diplomatic or consular official of the foreign country 
assigned or accredited to the United States. If reasonable opportunity has been 
given to all parties to investigate the authenticity and accuracy of the 
documents, the court may, for good cause shown, (i) admit an attested copy 
without final certification or (ii) permit the foreign official record to be 
evidenced by an attested summary with or without a final certification. 

215 



Rule 44 



MISSISSIPPI COURT RULES 



(b) Lack of record. A written statement that after diligent search no record 
or entry of a specified tenor is found to exist in the records designated by the 
statement, authenticated as provided in subdivision (a)(1) of this rule in the 
case of a domestic record, or complying with the requirements of subdivision 
(a)(2) of this rule for a summary in the case of a foreign record, is admissible 
as evidence that the records contain no such record or entry 

(c) This rule does not prevent the proof of official records or of entry or lack 
of entry therein by any other method authorized by law. 

COMMENT 



The purpose of this rule is to provide a 
simple and uniform method of proving 
public records and entry or lack of entry 
therein. 

Rule 44 is a codification of rules for 
proving official records. Its limited pur- 
pose should be clearly understood: Both 
subdivisions (1) and (2) of Rule 44(a) state 
that official records "when admissible for 
any purpose" may be evidenced by the 
procedures there set out. Rule 44 has not 
attempted to state what the existence or 
nonexistence of any official record tends to 
prove; Rule 44 prescribes how such re- 
cords are to be qualified for admission in 
evidence when considered probative of 
some proposition in the case. Even though 
a document has been authenticated as 
required by this rule, it may still be ex- 
cluded from evidence if, for example, it is 
irrelevant, or is hearsay, or is otherwise 
objectionable. 

If an official record is otherwise admis- 
sible. Rule 44 creates an exception to the 
documentary originals rule by allowing a 
copy to be used in place of the original and 
states several ways in which the copy or 
record may be authenticated. Even 
though a document may be an official 
record and even though it may be within 
an exception to the hearsay rule, it cannot 
be admitted unless authenticated as re- 
quired by this rule by some other permis- 
sible means. The methods of authentica- 
tion authorized by Rule 44 are additional 
and supplementary; they are not exclusive 
of other methods made available by Mis- 
sissippi law. A party desiring to introduce 
an official record in evidence has the op- 
tion of proceeding under Rule 44 or under 
any other applicable provision of law {See 
the listing of Mississippi Code sections at 
the end of this comment). 



The key term in Rule 44 is "official 
record;" the term is not defined but should 
cause no difficulty. An official record need 
not be a public record in the sense that it 
is open to public inspection; the term in 
the counterpart federal rule was defined 
in one early case in which it was said that 
"official" means "work done by a person in 
the employment of the government in the 
course of the performance of the duties of 
his positions" and that "record" refers to 
papers, demands, and writings made in 
the regular course of business. United 
States V. Aluminum Co. of America, 1 
F.R.D. 71, 75-76 (D.C.N.Y.1939). A more 
helpful approach, rather than defining the 
term, is to read it as applicable to any 
document that would be admissible under 
the official records exception to the hear- 
say rule. See Ludlow Corp. v. Arkwright- 
Boston Mfrs. Mut. Ins. Co., 317 So.2d 47 
(Miss. 1975). 

Rule 44(a)(1) deals with two types of 
official documents; those kept within the 
state and those kept without the state. A 
copy of the document need only be at- 
tested in the former case, certified under 
oath in the latter. See, e. g.. Miss. Code 
Ann. § 13-1-77 (1972) (public officers of 
this state need only certify copies to make 
them competent); Middleton v. State, 214 
Miss. 697, 699, 59 So.2d 320, 321 (1952) 
(copy certified by commissioner of public 
safety was deemed competent); Vincent v. 
State, 200 Miss. 423, 427, 27 So.2d 556, 
556-57 (1946) (certified copy by justice of 
the peace admissible); and § 13-1-81 (cer- 
tificate, attestation, or authentication 
purportedly given by officer of any state or 
United States is prima facie evidence of 
official character); § 13-1-79 (copies certi- 
fied by U.S. officer); § 13-1-99 (copies cer- 
tified by officers of other states). 



216 



RULES OF CIVIL PROCEDURE Rule 45 

Rule 44(a)(2) provides for the authenti- Rule 44(b) allows the proving of lack of 

cation of official records of foreign origin record by simply stating in writing that 

by one of four methods: (1) official publi- the record was not found, and by authen- 

cation; (2) attested copy; (3) chain-certifi- tication in the same method as for an 

cate, all accompanied by a final certificate; official record. See Miss. Code Ann. § 13- 

and, (4) discretion of the court to admit 1-83 (1972) (certificate by official custo- 

without final certification with a showing dian that record cannot be found is admis- 

of good cause by the proponent. See Miss. sible). 

Code Ann. § 13-1-101 (1972) (copies of Rule 44(c) makes it clear that these 
foreign law or record admissible when rules are additional and supplementary 
certified by officer having custody and and are not exclusive. The following Mis- 
authenticated by certificate by public min- sissippi Code Annotated ( 1972) references 
ister, secretary of legation, or consul of the should also be consulted: §§ 13-1-77 
United States). through -117. 

Rule 44.1. Determination of foreign law. [Omitted]. 

COMMENT 

Rule 44.1 is omitted from the Missis- of foreign jurisdictions: Miss. Code Ann. 

sippi Rules of Civil Procedure because it is § 13-1-149 (1972) provides that courts 

more a rule of evidence than of procedure shall take judicial notice of all foreign law. 

and because Mississippi already has an See Parker v. McCaskey Register Co., Ill 

excellent method for determining the law Miss. 347, 171 So. 337 (1936). 

Rule 45. Subpoena. 

(a) Form; issuance. 

(1) Every subpoena shall be issued by the clerk under the seal of the court, 
shall state the name of the court and the title of the action, and shall command 
each person to v^hom it is directed to attend and give testimony, or to produce 
and permit inspection and copying of designated books, documents or tangible 
things in the possession, custody or control of that person, or to permit 
inspection of premises, at a time and place therein specified. The clerk shall 
issue a subpoena signed and sealed, but otherwise in blank, to a party 
requesting it, w^ho shall fill it in before service. A command to produce or to 
permit inspection may be joined vv^ith a command to appear at trial or hearing 
or at deposition, or may be issued separately. 

(2) Subpoenas for attendance at a trial or hearing, for attendance at a 
deposition, and for production or inspection shall issue from the court in which 
the action is pending. 

(3) In the case of discovery to be taken in foreign litigation, the subpoena 
shall be issued by a clerk of a court for the county in which the discovery is to 
be taken. The foreign subpoena shall be submitted to the clerk of court in the 
county in which discovery is sought to be conducted in this state. When a party 
submits a foreign subpoena to a clerk of court in this state, the clerk, in 
accordance with that court's procedure, shall promptly issue a subpoena for 
service upon the person to which the foreign subpoena is directed. 

The subpoena under subsection (3) must incorporate the terms used in the 
foreign subpoena and it must contain or be accompanied by the names, 

217 



Rule 45 MISSISSIPPI COURT RULES 

addresses, and telephone numbers of all counsel of record in the proceeding to 
which the subpoena relates and any party not represented by counsel. 

A subpoena issued by a clerk of court under subsection (3) must otherwise be 
issued and served in compliance with the rules of this state. An application to 
the court for a protective order or to enforce, quash or modify a subpoena 
issued by a clerk of court under subsection (3) must comply with the rules of 
this state and be submitted to the issuing court in the county in which 
discovery is to be conducted. 

(b) Place of examination. A resident of the State of Mississippi may be 
required to attend a deposition, production or inspection only in the county 
wherein he resides or is employed or transacts his business in person, or at 
such other convenient place as is fixed by an order of the court. A non-resident 
of this state subpoenaed within this state may be required to attend only in the 
county wherein he is served, or at such other convenient place as is fixed by an 
order of the court. 

(c) Service. 

(1) A subpoena may be served by a sheriff, or by his deputy, or by any other 
person who is not a party and is not less than 18 years of age, and his return 
endorsed thereon shall be prima facie proof of service, or the person served 
may acknowledge service in writing on the subpoena. Service of the subpoena 
shall be executed upon the witness personally Except when excused by the 
court upon a showing of indigence, the party causing the subpoena to issue 
shall tender to a non-party witness at the time of service the fee for one day's 
attendance plus mileage allowed by law. When the subpoena is issued on 
behalf of the State of Mississippi or an officer or agency thereof, fees and 
mileage need not be tendered in advance. 

(2) Proof of service shall be made by filing with the clerk of the court from 
which the subpoena was issued a statement, certified by the person who made 
the service, setting forth the date and manner of service, the county in which 
it was served, the names of the persons served, and the name, address and 
telephone number of the person making the service. 

(d) Protection of persons subject to subpoenas. 

(1) In General. 

(A) On timely motion, the court from which a subpoena was issued shall 
quash or modify the subpoena if it (i) fails to allow reasonable time for 
compliance; (ii) requires disclosure of privileged or other protected matter and 
no exception or waiver applies, (iii) designates an improper place for exami- 
nation, or (iv) subjects a person to undue burden or expense. 

(B) If a subpoena (i) requires disclosure of a trade secret or other confiden- 
tial research, development, or commercial information, or (ii) requires disclo- 
sure of an unretained expert's opinion or information not describing specific 
events or occurrences in dispute and resulting from the expert's study made 
not at the request of any party, the court may order appearance or production 
only upon specified conditions. 

(2) Subpoenas for Production or Inspection, 

(A) A person commanded to produce and permit inspection and copying of 
designated books, papers, documents or tangible things, or to permit inspec- 

218 



RULES OF CIVIL PROCEDURE Rule 45 

tion of premises need not appear in person at the place of production or 
inspection unless commanded by the subpoena to appear for deposition, 
hearing or trial. Unless for good cause shown the court shortens the time, a 
subpoena for production or inspection shall allow not less than ten days for the 
person upon whom it is served to comply with the subpoena. A copy of all such 
subpoenas shall be served immediately upon each party in accordance with 
Rule 5. A subpoena commanding production or inspection will be subject to the 
provisions of Rule 26(d). 

(B) The person to whom the subpoena is directed may, within ten days after 
the service thereof or on or before the time specified in the subpoena for 
compliance, if such time is less than ten days after service, serve upon the 
party serving the subpoena written objection to inspection or copying of any or 
all of the designated materials, or to inspection of the premises. If objection is 
made, the party serving the subpoena shall not be entitled to inspect and copy 
the material except pursuant to an order of the court from which the subpoena 
was issued. The party serving the subpoena may, if objection has been made, 
move at any time upon notice to the person served for an order to compel the 
production or inspection. 

(C) The court, upon motion made promptly and in any event at or before the 
time specified in the subpoena for compliance therewith, may (i) quash or 
modify the subpoena if it is unreasonable or oppressive, or (ii) condition the 
denial of the motion upon the advance by the person in whose behalf the 
subpoena is issued of the reasonable cost of producing the books, papers, 
documents, or tangible things. 

(e) Duties in responding to subpoena. 

(DA person responding to a subpoena to produce documents shall produce 
them as they are kept in the usual course of business or shall organize and 
label them to correspond with the categories in the demand. 

(2) When information subject to a subpoena is withheld on a claim that it is 
privileged or subject to protection as trial preparation materials, the claim 
shall be made expressly and shall be supported by a description of the nature 
of the documents, communications, or things not produced that is sufficient to 
enable the demanding party to contest the claim. 

(f) Sanctions. On motion of a party or of the person upon whom a subpoena 
for the production of books, papers, documents, or tangible things is served and 
upon a showing that the subpoena power is being exercised in bad faith or in 
such manner as unreasonably to annoy, embarrass, or oppress the party or the 
person upon whom the subpoena is served, the court in which the action is 
pending shall order that the subpoena be quashed and may enter such further 
orders as justice may require to curb abuses of the powers granted under this 
rule. To this end, the court may impose an appropriate sanction. 

(g) Contempt. Failure by any person without adequate excuse to obey a 
subpoena served upon him may be deemed a contempt of the court from which 
the subpoena issued. (Amended effective March 13, 1991; July 1, 1997; July 1, 
1998; amended effective July 1, 2009 to provide a procedure for foreign 
subpoenas. This provision shall take effect and be in force from and after July 
1, 2009, and applies to requests for discovery in cases pending on July 1, 2009.) 

219 



Rule 45 



MISSISSIPPI COURT RULES 



ADVISORY COMMITTEE HISTORICAL NOTE 



Effective March 13, 1991, Rule 45(c) 
was amended to require the party causing 
a subpoena to issue to tender to a non- 
party witness the fee for one day's atten- 
dance plus mileage allowed by law. Rule 
45(e) was amended by deleting the provi- 
sion for tendering the fee for one day's 
attendance plus the mileage allowed by 
law to certain witnesses when subpoe- 



naed. Rule 45(d) was amended to provide 
that when a deposition is to be taken on 
foreign litigation the subpoena shall be 
issued by the clerk for the county in which 
the deposition is to be taken. 574-576 So. 
2d XXIV-XXV (West Miss. Gas. 1991). 

Effective July 1, 1997 a new Rule 45 
was adopted. 

[Amended effective July 1, 1997.1 



COMMENT 



A "subpoena" is a mandate lawfully is- 
sued under the seal of the court by the 
clerk thereof Its function is to compel the 
attendance of witnesses, the production of 
documents and the inspection of premises 
so that the court may have all available 
information for the determination of con- 
troversies. 9 Wright & Miller, Federal 
Practice and Procedure, Civil § 2451 
(1971). 

Subpoenas are of two types: a subpoena 
ad testificandum compels the attendance 
of a witness; a subpoena duces tecum 
compels the production of documents and 
things. Both kinds of subpoenas may be 
issued either for the taking of a deposition 
or for a trial or hearing; Rule 45 governs 
the availability and use of both kinds of 
subpoenas. The rule has no application to 
subpoenas issued in support of adminis- 
trative hearings or by administrative 
agencies; those subpoenas are governed 
by statute. See, e. g., Miss. Code Ann. 
§ 5-1-21 (witnesses before legislative bod- 
ies); § 7-1-49 (examiner of public ac- 
counts); § 19-3-51 (county boards of su- 
pervisors); § 27-3-35 (tax commission); 
§ 31-3-13(c) (state board of public con- 
tracts); § 43-9-13 (old age assistance in- 
vestigations); § 43-11-11 (investigations 
of institutions for the aged or infirm); 
§ 43-13-121 (medicaid commission); § 43- 
33-11 (housing authority); § 49-1-43 
(wildlife, fisheries and parks board); § 49- 
17-21 (air and water pollution board); 
§ 51-3-51 (water commission); § 53-1-35 
(oil and gas board); § 59-21-127 (boat and 
water safety commission); § 61-1-35 
(aeronautics commission); § 63-1-53 
(hearings to suspend driver's license); 
§ 63-17-97 (motor vehicle commission); 



§ 63-19-29 (motor vehicle sales finance 
law administrator); § 67-1-37 (alcoholic 
beverage commission); § 73-7-27 (cosme- 
tology license revocation or suspension); 
§ 73-13-15 (engineer and land surveyor 
registration board); § 73-21-99 (disciplin- 
ary proceedings against pharmacists); 
§ 73-25-27 (disciplinary proceedings 
against physicians); § 73-29-37 (disciplin- 
ary proceedings against polygraph exam- 
iners); § 73-35-23 (disciplinary proceed- 
ings against real estate brokers); § 75-35- 
315 (meat inspections); § 75-49-13 
(proceedings involving mobile homes); 
§ 75-67-223 (hearings on denials of small 
loan licenses); § 75-71-709 (securities 
regulations hearings); § 77-5-17(4) (board 
of directors of rural electrification author- 
ity); § 81-1-85 (bank examinations); § 81- 
13-1 (hearings on denial of application for 
license of credit union); § 81-13-17 (ex- 
aminations of credit union license appli- 
cations by department of bank supervi- 
sion); and § 83-5-39(4) (1972) (hearing on 
charges of unfair business practices by 
insurance companies). 

Rule 45(a)(1) provides that a subpoena 
shall command each person to whom it is 
directed to attend and give testimony, or 
to produce and permit inspection of evi- 
dence, or to permit inspection of premises, 
and provides further that a command to 
produce evidence or to permit inspection 
may be joined with a command to appear 
at trial or hearing or at deposition, or may 
be issued separately. A subpoena for the 
attendance of a witness at the taking of a 
deposition is issued as of course by the 
clerk upon proof of service of notice to 
depose as provided in MRCP 30(b) and 
31(a). A notice to depose is not a condition 



220 



RULES OF CIVIL PROCEDURE 



Rule 45 



precedent to the issuance of a subpoena 
for production or inspection. 

Under Rule 45(a)(2), all subpoenas (ex- 
cept those pertaining to foreign litigation) 
shall be issued from the court in which the 
action is pending and may be served any- 
where in the State. Subpoenas for deposi- 
tions in foreign litigation must be issued 
by a clerk of a court for the county in 
which the deposition is to be taken. How- 
ever, a Mississippi resident may be sub- 
poenaed to attend an examination only in 
a county where he resides, or is employed 
or transacts business in person, unless the 
court fixes another convenient place. A 
nonresident subpoenaed within the State 
may be required to attend only in the 
county where he is served, unless the 
court fixes another convenient place. Rule 
45(b). 

A "foreign subpoena" means a subpoena 
issued under authority of a court of record 
of a foreign jurisdiction. "Foreign jurisdic- 
tion" means a state other than this state. 

See the exclusion in Rule 46(b)(ll)(i) of 
the Rules of Appellate Procedure Admis- 
sion of Foreign Attorneys Pro Hac Vice. 

Rule 45(c)(1) authorizes that subpoenas 
may be served by a sheriff, his deputy, or 
any person not a party over the age of 
eighteen years; this provision permits at- 
torneys to serve subpoenas. The proof of 
service required by paragraph (c)(2) must 
show, inter alia, the county in which the 
subpoena was served, in order to ascertain 
where a nonresident may be required to 
appear for examination in accordance 
with Rule 45(b). 

Rule 45(c) requires advance payment of 
statutory witness fees and mileage; this 
subsection is complementary to Miss. 
Code Ann. §§ 25-7-47 through 25-7-59 
(1972). 

Rule 45(d)(1) sets out the grounds for 
objecting to any type of subpoena. 

Rule 45(d)(2) sets out additional protec- 
tions available to persons subject to sub- 
poenas for production or inspection. Sub- 
section (d)(2)(A) is intended to ensure that 
there be no confusion as to whether a 
person not a party in control, custody, or 
possession of discoverable evidence can be 
compelled to produce such evidence with- 
out being sworn as a witness and deposed. 
Further, a subpoena shall allow not less 



than 10 days for production or inspection, 
unless the court for good cause shown 
shortens the time. The subpoena must 
specify with reasonable particularity the 
subjects to which the desired writings 
relate. The force of a subpoena for produc- 
tion of documentary evidence generally 
reaches all documents under the control of 
the person ordered to produce, saving 
questions of privilege or unreasonable- 
ness. 

Paragraph (d)(2)(A) requires that the 
party serving a subpoena for production or 
inspection must serve a copy of the sub- 
poena upon all parties to the action imme- 
diately after it is served on the person to 
whom it is directed. Thus, the rule does 
not contemplate that the party serving a 
subpoena may delay serving a copy of the 
subpoena on the other parties to the ac- 
tion until 10 days before the date desig- 
nated for the production or inspection. A 
failure to immediately serve a copy of the 
subpoena on the other parties may be 
grounds for extending the time for compli- 
ance with the subpoena. Service must be 
made in accordance with Rule 5. 

A subpoena for production or inspection 
is also subject to the provisions of Rule 
26(d). 

Paragraph 45(d)(2)(C), provides that 
upon motion the court may (1) quash or 
modify the subpoena if it is unreasonable 
or oppressive, or (2) condition the denial of 
the motion upon the advancement by the 
person in whose behalf the subpoena is 
issued of the reasonable cost of producing 
the books, papers, documents, or tangible 
things. A subpoena duces tecum is subject 
to a motion, as just described, and is also 
subject to the provision for protective or- 
ders in Rule 26(c). 

Rule 45(e), which specifies the duties of 
persons served with a subpoena, does not 
require the witness to prepare papers for 
the adverse party or to compile informa- 
tion contained in the documents referred 
to, but only to produce designated docu- 
ments. If the subpoena calls for relevant 
information which must be compiled or 
selected from records which are largely 
irrelevant or privileged, the party compel- 
ling production should be required to bear 
the expense of extracting the relevant 
material. See 5 A Moore's Federal Practice, 



221 



Rule 45 



MISSISSIPPI COURT RULES 



f 45.05(1) (1975); Ulrich v. Ethvl Gasoline 
Corp., 2 F.R.D. 357 (W.D.Ky.l942). 

The court is authorized by Rule 45(f) to 
impose an appropriate sanction on a party 
who is shown to have exercised the sub- 
poena power in bad faith or in such man- 
ner as unreasonably to annoy, embarrass, 
or oppress the party or the person upon 
whom the subpoena is served, which ordi- 
narily will include attorney's fees and 
costs, and may also include compensation 
for wages lost by a witness in objecting to 
the subpoena. 

Disobedience of a subpoena without ad- 
equate excuse may be punished as a con- 



tempt of the court. MRCP 45(g). An order 
for contempt may require the person sub- 
ject to the subpoena to pay the attorney's 
fees and costs incurred by the party seek- 
ing to enforce the subpoena. The rule 
leaves undefined what is an adequate ex- 
cuse for failure to obey a subpoena. Ade- 
quate excuse would exist when a sub- 
poena purports to require a non-party to 
attend or produce at a place not within the 
limits provided by paragraph (b). 

[Comment amended effective March 13, 
1991; April 18. 1995; July 1, 1997; July 1, 
1998; Julv 1, 2009.] 



JUDICIAL DECISIONS 



Applicability. 
Illustrative cases. 

Applicability. 

Correct standard for awarding sanc- 
tions for a vexatiously overbroad sub- 
poena is that under M.R.C.P. Rule 45, not 
Rules 26 or 37. SLM v. Clinton Pub. Sch. 
Dist., 677 So. 2d 737 (Miss. 1996). 

Illustrative cases. 

Chancellor was publicly reprimanded 
for misconduct in violation of, inter alia. 
Miss. Code Jud. Conduct Canon 1, 2A. 
3B(2), 3C(1) because the chancellor had 
issued subpoenas to two members of 
county board of supervisors, and during a 
later meeting with the board of supervi- 
sors, the chancellor admitted that he had 
failed to comply with the law in doing so; 
further, the commission found by clear 
and convincing evidence that the chancel- 
lor had engaged in willful misconduct in 
office and conduct prejudicial to the ad- 
ministration of justice which brought the 
office into disrepute, under Miss. Const, 
art. VI, § 177A. The record did not indi- 
cate any aggravating factors. Miss. 
Comm'n on Judicial Performance v. 
Buffington, 55 So. 3d 167 (Miss. 2011). 

Decision to impose sanctions under 
Miss. R. Civ. P. 45(f) and Miss. Code Ann. 
§ 11-55-5(1), including an award of attor- 
ney's fees, against creditors was consis- 
tent with the decision that the garnish- 
ment was unreasonable as a result of the 
considerable evidence that creditors knew 
or should have known prior to filing for 



garnishment of the good efforts debtors 
made with regard to making the payment 
at issue. Deliman v. Anthony Clarke 
Thomas & Act Envtl., Inc., 16 So. 3d 721 
(Miss. Ct. App. 2009). writ of certiorari 
denied by 17 So. 3d 99, 2009 Miss. LEXIS 
415 (Miss. 2009). 

Non-parties to the litigation, upon 
whom a party had sought to compel the 
production of documents, correctly 
pointed out that ser\4ce of a subpoena 
could only performed by personal ser\dce. 
There was no authority, statutory or oth- 
erwise, that would have allowed a Missis- 
sippi court to compel these nonresident, 
non-parties to produce documents. 
S\Tigenta Crop Prot., Inc. v. Monsanto Co., 
908 So. 2d 121 (Miss. 2005). 

Letters between the mother's and the 
father's attorneys indicated the dates on 
which the subpoena and notice thereof 
were served, the subpoena on a Friday, 
and the notice to the mother's attorney on 
the following Monday. Those letters did 
show that the father's attorney had failed 
to serve notice of the subpoena immedi- 
ately under Miss. R. Civ. P. 45, but the 
father's attorney's failure to follow correct 
procedure did not rise to the level of abuse 
of process; the trial court properly granted 
summary judgment in favor of the father 
and his attorney as to the abuse of process 
claim. Ayles v. Allen, 907 So. 2d 300 (Miss. 
2005). 

Finding in favor of the patient in his 
medical malpractice action was improper 
pursuant to Miss. R. Civ. P. 45 because the 



222 



RULES OF CIVIL PROCEDURE 



Rule 47 



judge's decision to quash the mother-in- 
law's subpoena was based on a fax from a 
doctor and an ex parte conversation, with- 
out notice to either party, without the 
benefit of observing witnesses, and with- 
out the doctor and chnic having the right 
to confront the witness or the doctors 
advocating her unavailabihty as a wit- 
ness. Blake v. Clein, 903 So. 2d 710 (Miss. 
2005). 

Defendant failed to serve copies of the 
subpoenae to the State, which was error; 
as well, defendant had received the re- 
cords before either the State or the circuit 



court knew that the subpoenae had been 
issued. Cox v. State, 849 So. 2d 1257 
(Miss. 2003). 

Trial court did not err in declining to 
require railroad to respond to subpoena to 
produce notes and drawings of its investi- 
gator regarding accident at crossing; dece- 
dent's representative failed to allow at 
least ten days /or documents to be pro- 
duced, and she also had same opportunity 
as railroad to observe crossing in an unal- 
tered state subsequent to accident. Mit- 
cham V. Illinois Cent. G.R.R., 515 So. 2d 
852 (Miss. 1987). 



Rule 46. Exceptions unnecessary. 

An exception at any stage or step of the case or matter is unnecessary to lay 
a foundation for reviev^ whenever a matter has been called to the attention of 
the court by objection, motion, or otherwise and the court has ruled thereon. 
However, if a party has no opportunity to object to a ruling or order at the time 
it is made, the absence of an objection does not thereafter prejudice him. 

COMMENT 



Rule 46 is an adaptation of Miss. Code 
Ann. § 9-13-31 (1972) and conforms to 
traditional Mississippi practice. This rule 
does not repeal or modify the cited stat- 
ute; an objection noted in the record of a 
trial or hearing and the court's ruling 
thereon is sufficient to preserve the mat- 
ter for appellate review. However, the bill 



of exception is still necessary to preserve 
for appellate review matters not appear- 
ing of record. See, e. g., Benjamin v. Vir- 
ginia-Carolina Chem. Co., 126 Miss. 57, 
87 So. 895 (1921); Alexander v. Hancock, 
174 Miss. 482, 164 So. 772, 165 So. 126 
(1935). 



Rule 47. Jurors. 

(a) Examination of jurors. Any person called as a juror for the trial of any 
cause shall be examined under oath or upon affirmation as to his qualifica- 
tions. The court may permit the parties or their attorneys to conduct the 
examination of the prospective jurors or may itself conduct the examination. In 
the latter event, the court shall permit the parties of their attorneys to 
supplement the examination by further inquiry. 

(b) Selection of jurors; jury service. Jurors shall be drawn and selected for 
jury service as provided by statute. 

(c) Challenges. In actions tried before a 12-person jury, each side may 
exercise four peremptory challenges. In actions tried before a 6-person jury, 
each side may exercise two peremptory challenges. Where one or both sides are 
composed of muliple parties, the court may allow challenges to be exercised 
separately or jointly, and may allow additional challenges; provided, however, 
in all actions the number of challenges allowed for each side shall be identical. 
Parties may challenge any juror for cause. 



223 



Rule 47 



MISSISSIPPI COURT RULES 



(d) Alternate jurors. The trial judge may, in his discretion, direct that one or 
two jurors in addition to the regular panel be called and empaneled to sit as 
alternate jurors. Alternate jurors, in the order in which they are called, shall 
replace jurors who, prior to the time the jury retires to consider its verdict, 
become unable or disqualified to perform their duties. Alternate jurors shall be 
drawn in the same manner, shall have the same qualifications, shall be subject 
to the same examination and challenges for cause, shall take the same oath 
and shall have the same functions, powers, facilities, and privileges as the 
regular jurors. Each party shall be allowed one peremptory challenge to 
alternate jurors in addition to those provided by subdivision (c) of this rule. The 
additional peremptory challenges provided for herein may be used against an 
alternate juror only, and other peremptory challenges, provided by subdivision 
(c) of this rule, may not be used against an alternate juror. (Amended effective 
June 24, 1992.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective June 24, 1992, Rule 47 was 
amended to provide that the court may 
allocate peremptory challenges to a side, 
rather than to a party, and, in the case of 
multiple parties on a side, may allow them 



to be exercised jointly or separately, and 
may allow additional peremptory chal- 
lenges. 598-602 So. 2d XXIII (West Miss. 
Gas. 1992). 



COMMENT 



Rule 47(a) requires that jurors be exam- 
ined under oath as to their qualifications; 
the examination may be by the court or by 
the attorneys (or parties, if unrepre- 
sented). In no event can the court deny 
counsel their right to examine jurors; such 
probably would constitute reversible error 
under Miss. Code Ann. § 13-5-69 (1972). 

Rule 47(b) provides that the drawing 
and selecting of trial jurors shall be as 
provided by statute. See Miss. Code Ann. 
§§ lS-b-2 etseq. (1972). 

Rule 47 (c) provides that each side may 
exercise peremptory challenges to pro- 



spective jurors. Under the liberal provi- 
sions of these rules for joinder of claims 
and parties, problems may arise where 
there are multiple parties on a side, or 
deep divisions of interest among parties 
comprising a side. In such cases, it is 
implicit that the court may apportion the 
challenges among the parties comprising 
that side when they cannot agree on the 
apportionment themselves. 

Rule 47(d) is adapted from Miss. Code 
Ann. § 13-5-67 (1972) and tracks prior 
practice for empaneling alternate jurors. 

[Amended April 18, 1995.] 



JUDICIAL DECISIONS 



Alternates. 

Peremptory challenges. 
Illustrative cases. 

Alternates. 

Alternate jurors must be discharged as 
soon as the jury retires to deliberate. 
Department of Human Servs. v. Moore, 
632 So. 2d 929 (Miss. 1994). 



Peremptory challenges. 

In a landowner's action against a lum- 
ber company for trespass and wrongful 
cutting of timber, the trial judge offered no 
reason why the fees of the landowner's 
attorneys were not reasonable, except 
that they did not prevail on all their 
claims; rather, the trial court awarded 
fees in proportion to the damages 



224 



RULES OF CIVIL PROCEDURE 



Rule 48 



awarded. Such an arbitrary method of 
calculation was an abuse of discretion, 
and the appellate court reversed and re- 
manded the matter. Smith v. Parkerson 
Lumber, Inc., — So. 2d — , 2004 Miss. App. 
LEXIS 326 (Miss. Ct. App. Apr. 20, 2004), 
opinion withdrawn by, substituted opinion 
at 888 So. 2d 1197, 2004 Miss. App. LEXIS 
1149 (Miss. Ct. App. 2004). 

Illustrative cases. 

Trial court in an eminent domain pro- 
ceeding did not abuse its discretion when 
it declined to grant some of the 
comdemnor agency's challenges for cause, 
so that the agency eventually used up its 
peremptory challenges on some of those 



panel members; it was clear that the trial 
court extensively questioned those jurors 
before determining that they could be fair 
and impartial. Miss. Transp. Comm'n v. 
Highland Dev., LLC, 836 So. 2d 731 (Miss. 
2002). 

Defendant was not entitled to eight pe- 
remptory challenges on theory that two 
cross-claimants^ each of whom had been 
allowed four peremptory challenges, were 
in concert with each other; trial court did 
not abuse its discretion in determining 
question of adversity between parties. 
Mutual Life Ins. Co. v. Estate of Wesson, 
517 So. 2d 521 (Miss. 1987), cert, denied, 
486 U.S. 1043, 108 S. Ct. 2035, 100 L. Ed. 
2d 620 (1988). 



Rule 48. Juries and jury verdicts. 

(a) Circuit and chancery courts. Jurors in circuit and chancery court actions 
shall consist of twelve persons, plus alternates as provided by Rule 47(d). A 
verdict or finding of nine or more of the jurors shall be taken as the verdict or 
finding of the jury. 

(b) County court. Juries in county court actions shall consist of six persons, 
plus alternates as provided by Rule 47(d). A verdict or finding of five or more 
of the jurors shall be taken as the verdict or finding of the jury. 

COMMENT 



The purpose of Rule 48 is to promote 
trial convenience and efficiency by provid- 
ing for smaller juries and non-unanimous 
verdicts. 

Rule 48(a) provides that in circuit and 
chancery courts a decision of nine of the 
twelve jurors shall be the verdict. A doc- 
trine consistent with past Mississippi pro- 
cedure. See Miss. Code Ann. § 13-5-93 
(1972) (nine or more jurors may return 
verdict in civil suits in chancery and cir- 
cuit courts). Ulmerr v. Pistole, 115 Miss. 
485, 76 So. 522 (1917). 

The six-man jury is required in county 
courts by Rule 48(b); provision is made for 
a non-unanimous verdict. Cf. Miss. Code 
Ann. § 9-9-33 (1972) (county court jury 
shall consist of twelve, any nine of whom 
can return a verdict in a civil case). 

Traditionally, Mississippi civil practice 
has required the use of twelve-person ju- 
ries. See Brame v. Garwood, 339 So.2d 978 
(Miss. 1976) (trial court erred in permit- 



ting action to be tried to eleven-person 
jury, over defendant's objection, after juror 
was excused for personal reasons); De- 
ment V. Summer, 175 Miss. 290, 165 So. 
791 (1936) (trial by jury is universally 
held to mean a jury of twelve persons); 
Tillman v. Ailles, 13 Miss. 373 (1845) 
(verdict by a less number than twelve 
would be void, but a verdict of a greater 
number than twelve is not so on that 
account); but cf. Wolfe v. Martin, 2 Miss. 
30 (1834) (a jury of thirteen persons em- 
paneled to try an issue is an illegal jury). 
Rule 48 supersedes Mississippi case au- 
thority mandating twelve-person juries in 
county courts and repeals Miss. Code Ann. 
§ 9-9-33 (1972) (juries in county court 
actions to consist of twelve persons), but 
has no application to county courts when 
convened as a special court of eminent 
domain. See Miss. Code Ann. § 11-27-13 
(1972) (in eminent domain proceedings a 
jury of twelve shall be empaneled). 



225 



Rule 49 MISSISSIPPI COURT RULES 

JUDICIAL DECISIONS 

Applicability. demand for jury trial, since nothing in 

Six person juror requirement in statute governing such proceedings sug- 

M.R.C.P. Rule 48(b) applied to paternity gested the number of jurors that may be 

proceeding transferred from chancery required. Clark v. Whiten, 508 So. 2d 1105 

court to county court following defendant's (Miss. 1987). 

Rule 49. General verdicts and special verdicts. 

(a) General verdicts. Except as otherwise provided in this rule, jury deter- 
mination shall be by general verdict. The remaining provisions of this rule 
should not be applied in simple cases where the general verdict will serve the 
ends of justice. 

(b) Special verdict. The court may require a jury to return only a special 
verdict in the form of a special written finding upon each issue of fact. In that 
event the court may submit to the jury written questions susceptible of 
categorical or other brief answer or may submit written forms of the several 
special findings which might properly be made under the pleadings and 
evidence; or it may use such other method of submitting the issues and 
requiring written findings thereon as it deems most appropriate. The court 
shall give to the jury such explanation and instruction concerning the matter 
thus submitted as may be necessary to enable the jury to make its findings 
upon each issue. If in so doing the court omits any issue of fact raised by the 
pleadings or by the evidence, each party waives his right to a trial by jury of the 
issue so omitted unless before the jury retires he demands its submission to the 
jury. As to an issue omitted without such demand the court may make a 
finding; or if it fails to do so, it shall be deemed to have made a finding in accord 
with the judgment on the special verdict. 

(c) General verdict accompanied by answers to interrogatories. The court, in 
its discretion, may submit to the jury, together with instructions for a general 
verdict, written interrogatories upon one or more issues of fact the decision of 
which is necessary to a verdict. The court shall give such explanation or 
instruction as may be necessary to enable the jury both to make answers and 
to render a general verdict. When the general verdict and the answers are 
harmonious, the appropriate judgment upon the verdict and answers shall be 
entered. When the answers are consistent with each other but one or more is 
inconsistent with the general verdict, judgment may be entered consistent 
with the answers, notwithstanding the general verdict, or the court may 
return the jury for further consideration of its answers and verdict or may 
order a new trial. When the answers are inconsistent with each other and one 
or more is likewise inconsistent with the general verdict, judgment shall not be 
entered, but the court shall return the jury for further consideration of its 
answers and verdict or shall order a new trial. 

(d) Court to provide attorneys with questions. In no event shall the proce- 
dures of subdivisions (b) or (c) of this rule be utilized unless the court, within 
a reasonable time before final arguments are made to the jury, provides the 
attorneys for all parties a copy of the written questions to be submitted to the 
jury. (Amended effective March 1, 1989.) 

226 



RULES OF CIVIL PROCEDURE 



Rule 49 



ADVISORY COMMITTEE HISTORICAL NOTE 



Effective March 1, 1989, Rule 49 was 
amended to provide for a General Verdict 
Accompanied by Answers to Interrogator- 



ies in jury trials. 536-538 So. 2d XXVI- 
XXVII (West Miss. Gas. 1989). 



COMMENT 



The purpose of Rule 49 is to continue 
the commonly-used general verdict prac- 
tice in Mississippi and to also authorize 
the practice of special verdicts and gen- 
eral verdicts with interrogatories. 

Rule 49(a) makes it clear that in the 
usual case the general verdict will be 
used. See Miss. Code Ann. § 11-7-157 
(1972) (no special form of verdict is re- 
quired). 

Rule 49(b) offers, as an alternative to 
the general verdict, the special verdict, 
which requires the jury to make specific 
written findings on every submitted issue 
of fact. The special verdict is not new in 
Mississippi civil practice; clearly, it was 
utilized as early as the 1880's in the civil 
case of State v. Allen, 69 Miss. 508, 517-18, 
10 So. 473, 475 (1891). Apparently, the 
special verdict was so accepted as an inte- 
gral feature of civil litigation in this state 
that the reporters (Brame & Alexander) 
did not deem the supreme court's com- 
ments thereon worthy of headnoting. 
State V. Allen, supra. 

Over the years, however, use of the 
special verdict appears to have waned; in 
1946 the Supreme Court of Mississippi 
stated that "... there is no provision in our 
law whereby a litigant may address inter- 
rogatories to a jury and require answers 
thereto in the form of special verdicts 
preparatory to a general verdict, which 
must be in harmony therewith. After ver- 
dict, a jury must be polled, but not inter- 
rogated otherwise." Flournoy v. Brown, 
200 Miss. 171, 181, 26 So.2d 351, 355 
(1946). 

The distinction between special verdicts 
and jury polls must be borne in mind: the 
jury poll still is the only recognized means 
of ascertaining whether a juror was in- 
duced to yield to assent to a verdict 
against his conscientious convictions, 
James v. State ex rel. Doss, 55 Miss. 57, 59 
(1877); the special verdict requires that 
the jury find specifically submitted factual 



issues. The jury poll practice will continue 
to be the only method for asking jurors "Is 
this your verdict?" 

At common law the rule was that the 
special findings of the jury had to cover 
every material issue, at pain of judgment 
against the party carrying the burden of 
proof. See C. Wright, Law of Federal 
Courts § 94 (3d ed. 1976). MRGP 49(b) 
avoids this pitfall by providing that a 
party waives his right to jury trial of any 
omitted issue unless he demands its sub- 
mission before the jury retires. The court 
may make a finding on such an omitted 
issue; if the court does not it will be 
deemed to have made a finding in accord 
with the judgment he orders entered. 

The use of special verdicts is intended to 
emphasize the facts, prevent the jury from 
acting on bias, and make the law more 
certain. Their use is always in the discre- 
tion of the trial judge, who must exercise 
the practice with prudence: 

this often-desirable practice 
should be resorted to with discrimina- 
tion and foresight; it should never be 
used for mere cross-examination of 
the jury to create error for the record. 
Its purpose and best achievement is 
to enable errors already potential be- 
cause of confusions of fact or law "to 
be localized so that the sound portions 
of the verdict may be saved." . . . 
It is hence best available, when, as the 
judge can foresee, the issues can be thus 
clearly and simply differentiated, to save 
an appeal on at least that portion which 
cannot be questioned; it is of more doubt- 
ful value in a relatively simple factual 
situation . . . where the details asked for 
may not be the whole story. Morris v. 
Pennsylvania R. Co., 187 F.2d 837, 841 (2d 
Gir. 1951); G. Wright, supra. 

Rule 49(c) provides for general verdicts 
with interrogatories, a practice that is 
new to Mississippi procedure, but that is 
well known in the federal courts. See Fed- 
eral Rules of Civil Procedure Rule 49. 



227 



Rule 49 



MISSISSIPPI COURT RULES 



Rule 49(d) requires that the court pro- 
vide to all counsel copies of the written 
questions that will be submitted to the 
jury. In practice, the attorneys will pre- 
pare proposed questions for the jury and 



will have same granted or denied in the 
same manner as instructions. See MRCP 
51. 

[Amended effective March 1, 1989.] 



JUDICIAL DECISIONS 



In general. 
Interrogatories. 
Jury instructions. 
Omitted issues. 
Standards. 

In general. 

In a negligence case (slip and fall), the 
trial judge abused his discretion in twice 
orally reinstructing the jury. That was not 
to say that a trial judge could never in- 
struct a jury that the verdict was not in 
proper form; however, the trial judge 
stretched his comments beyond the 
bounds of merely seeking to have the jury 
clarify the verdict, and the conflicting spe- 
cial verdicts, coupled with the series of 
interv^ening erroneous oral instructions 
constituted reversible error, requiring a 
new trial. HWCC-Tunica, Inc. v. Jenkins, 
908 So. 2d 150 (Miss. Ct. App. 2004). 

To avoid problem of appellate court be- 
ing unable to determine on which of two 
alternate grounds a verdict was based, 
jury should be instructed to return a sep- 
arate verdict on each issue. Larkin v. 
Perry, 427 So. 2d 138 (Miss. 1983). 

Interrogatories. 

Where neither side requested any spe- 
cial interrogatories on the issue of dam- 
ages as to the particular claims, and the 
appellant failed to object to the verdict 
forms submitted to the jury, the trial court 
acted within its discretion in not submit- 
ting a special verdict or a general verdict 
accompanied by answers to interrogator- 
ies, and the appellant failed to preserve 
the issue for review. Missala Marine 
Servs. V Odom, 861 So. 2d 290 (Miss. 
2003). 

A verdict satisfied the requirements of 
subsection (c) of this rule as the jury's 
answers to the interrogatories were not 
inconsistent with the jury's general ver- 
dict. Sentinel Indus. Contracting Corp. v. 



Kimmins Indus. Serv. Corp., 743 So. 2d 
954 (Miss. 1999). 

Trial court did not abuse its discretion 
in refusing to submit personal injury case 
to jury on special written interrogatories, 
given that evidence of defendant's negli- 
gence was not isolated from that of co- 
defendant with whom plaintiff settled be- 
fore trial. W.J. Runyon & Son v. Davis, 605 
So. 2d 38 (Miss. 1992). 

Jury instructions. 

In the stopped driver's action against 
another driver after she was struck from 
behind, considering the facts and reading 
the instructions as a whole, the trial court 
erred by refusing a peremptory jury in- 
struction regarding liability and by refus- 
ing a jury instruction explaining how to 
calculate damages. Miss. R. Civ. R 49(b). 
Furthermore, the jury continuously pos- 
ing questions to the court during deliber- 
ation suggested that the jurors were con- 
fused by the instructions. Thompson v. 
Dung Thi Hoang Nguyen, 86 So. 3d 251 
(Miss. Ct. App. 2011), reversed by 86 So. 
3d 232, 2012 Miss. LEXIS 195 (Miss. 
2012), reversed by 86 So. 3d 232, 2012 
Miss. LEXIS 195 (Miss. 2012). 

Omitted issues. 

Appropriate method for preserving 
claim of error concerning omitted issue in 
special verdict instruction is to either 
make clear objection for record, stating 
basis for objection, or propose a special 
interrogatory which includes omitted is- 
sue, but a party is not required to do both. 
Jones V. Westinghouse Elec. Corp., 694 So. 
2d 1249 (Miss. 1997). 

Standards. 

Case was reversed and remanded for 
new trial on issue of damages, due to 
obvious confusion inherent in jury's re- 
sponse to instructions on special verdicts. 
First Bank of Southwest Mississippi v. 
Bidwell, 501 So. 2d 363 (Miss. 1987). 



228 



RULES OF CIVIL PROCEDURE Rule 50 

Rule 50. Motions for a directed verdict and for judgment notw^ith- 
standing the verdict. 

(a) Motion for directed verdict: when made; effect. A party who moves for a 
directed verdict at the close of the evidence offered by an opponent may offer 
evidence in the event that the motion is not granted without having reserved 
the right to do so and to the same extent as if the motion had not been made. 
A motion for a directed verdict which is not granted isjiot a waiver of trial by 
jury even though all parties to the action have moved for directed verdicts. A 
motion for a directed verdict shall state the specific grounds therefor. The order 
of the court granting a motion for a directed verdict is effective without any 
assent of the jury. 

(b) Motion for judgment notwithstanding the verdict. Not later than ten 
days after entry of judgment in accordance with a verdict, a party may file a 
motion to have the verdict and any judgment entered thereon set aside; or if a 
verdict was not returned, a party, within ten days after the jury has been 
discharged, may file a motion for judgment. If no verdict was returned the 
court may direct the entry of judgment or may order a new trial. 

(c) Conditional rulings on grant of motion. 

(1) If the motion for judgment notwithstanding the verdict provided for in 
subdivision (b) of this rule is granted, the court shall also rule on the motion for 
a new trial, if any, by determining whether it should be granted if the judgment 
is thereafter vacated or reversed, and shall specify the grounds for granting or 
denying the motion for the new trial. If the motion for a new trial is thus 
conditionally granted, the order thereon does not affect the finality of the 
judgment. In case the motion for a new trial has been conditionally granted 
and the judgment is reversed on appeal, the new trial shall proceed unless the 
appellate court has otherwise ordered. In case the motion for a new trial has 
been conditionally denied, the appellee on appeal may assert error in that 
denial; and if the judgment is reversed on appeal, subsequent proceedings 
shall be in accordance with the order of the appellate court. 

(2) The party whose verdict has been set aside on motion for a judgment 
notwithstanding the verdict may file a motion for a new trial pursuant to Rule 
59 not later than ten days after entry of the judgment notwithstanding the 
verdict. 

(d) Denial of motion. If the motion for judgment notwithstanding the verdict 
is denied, the party who prevailed on the motion may, as appellee, assert 
grounds entitling him to a new trial on the event the appellate court concludes 
that the trial court erred in denying the motion for judgment notwithstanding 
the verdict. If the appellate court reverses the judgment nothing in this rule 
precludes it from determining that the appellee is entitled to a new trial or 
from directing the trial court to determine whether a new trial shall be 
granted. (Amended effective July 1, 1994; July 1, 1997.) 



229 



Rule 50 



MISSISSIPPI COURT RULES 



ADVISORY COMMITTEE HISTORICAL NOTE 



Effective July 1, 1994, Rule 50(b) was 
amended so that a motion for directed 
verdict is not a prerequisite to file a mo- 
tion for judgment notwithstanding the 
verdict. 632-635 So.2d XXX-XXXI (West 
Miss. Cases 1994). 

Effective July 1, 1997, Rule 50(b) was 
amended to clarify that Rule 50(b) mo- 



tions must be filed not later than ten days 
after entry of judgment. — So. 2d — (West 
Miss. Cases). 

[Adopted August 21, 1996; amended ef- 
fective July 1, 1997.1 



COMMENT 



Simplistically stated, it is the law in 
Mississippi that questions of fact are for 
the jury and questions of law are for the 
court. Cantrell u. Lusk, 113 Miss. 137, 73 
So. 885 (1917). Yet there are situations in 
which the process of appljdng the law to 
the facts may sometimes be for the court. 
See generally , authorities cited in 14 Miss. 
Digest, Trial, key numbers 134-181 
(1973). Rule 50 is a device for the court to 
enforce the rules of law by taking away 
from the jury cases in which the facts are 
sufficiently clear that the law requires a 
particular result. Rule 50 applies only in 
cases tried to a jury with a power to return 
a binding verdict. It does not apply to 
cases tried without a jury nor to those 
tried to the court with an advisory jury. 

Rule 50(a) provides for a motion for a 
directed verdict at the close of the plain- 
tiff's evidence or at the close of all evi- 
dence and before the case is submitted to 
the jury. The rule enables the court to 
determine whether there is any question 
of fact to be submitted to the jury and 
whether any verdict other than the one 
directed would be erroneous as a matter of 
law; it is conceived as a device to save the 
time and trouble involved in a lengthy 
jury determination. This provision re- 
quires that the motion for a directed ver- 
dict state the specific grounds therefor, 
which is contrary to prior Mississippi 
practice. Cf. Covington County v. Morris, 
122 Miss. 496, 84 So. 462 (1920) (defen- 
dant need not point out specific reasons 
for request for peremptory instruction). 

Rule 50(a) also provides that if a motion 
for a directed verdict made by a party at 
the close of his opponent's evidence is not 
granted, the movant may offer evidence as 
if the motion had not been made without 



expressly preserving the right to do so. In 
ruling on the motion for a directed verdict, 
the court should proceed along the same 
guidelines and standards that have gov- 
erned prior peremptory instruction and 
directed verdict practice in Mississippi: 
the court should look solely to the testi- 
mony on behalf of the opposing party; if 
such testimony, along with all reasonable 
inferences which can be drawn therefrom, 
could support a verdict for that party, the 
case should not be taken from the jury. See 
White V. Thomason, 310 So.2d 914 (Miss. 
1975); Ezell v. Metropolitan Ins. Co., 228 
So.2d 890 (Miss. 1969); Holmes v. Simon, 
71 Miss. 245, 15 So. 70 (1893); but see 
Paymaster Oil Mill Co. v. Mitchell, 319 
So.2d 652, 656-7 (Miss. 1975) (suggests 
different standards for testing the suffi- 
ciency of evidence on motions for directed 
verdict and motion for peremptory in- 
struction or judgment n. o. v.). A motion 
for a directed verdict, pursuant to MRCP 
50(a), supersedes both the former peremp- 
tory instruction practice and the demur- 
rer to the evidence. 

Rule 50(b) differs from its federal rule 
counterpart in that a motion for a directed 
verdict is no longer a prerequisite to file a 
motion for a judgment notwithstanding 
the verdict. New Hampshire u. Sid Smith 
& Associates, Inc., 610 So.2d 340 (Miss. 
1992). A party waives his right to a di- 
rected verdict if the motion is made at the 
close of his opponent's case and thereafter 
the movant introduces evidence in his own 
behalf, Patrick v. Michigan Nat. Bank, 
220 So.2d 273 (Miss. 1969); Broadhead v. 
Gatlin, 243 Miss. 386, 137 So.2d 909 
(1962); however, the movant may renew 
the motion at the close of all the evidence. 
The renewed motion will be judged in the 



230 



RULES OF CIVIL PROCEDURE 



Rule 50 



light of the case as it stands at that time. 
Even though the court may have erred in 
den5ring the initial motion, such error is 
cured if subsequent testimony on behalf of 
the moving party repairs the defects of his 
opponent's case. See 9 Wright & Miller, 
Federal Practice and Procedure, Civil 
§ 2534 (1971). 

Rule 50(b), governing motions for a 
judgment notwithstanding the verdict, ef- 
fectuates a major change in Mississippi 
practice: formerly, motions for judgment 
notwithstanding the verdict were re- 
quired to be made prior to the close of the 
term of court rendering the judgment, 
Evers v. Truly, 317 So.2d 414 (Miss. 1975); 
under Rule 50(b) the motion must be filed 
within ten days after the judgment is 
entered, irrespective of the date court is 
adjourned. MRCP 6(c). 

Rule 50(c) authorizes conditional rul- 
ings on Rule 50(b) motions. Under this 
practice there are four courses the trial 
court may take when a motion in the 
alternative for a new trial or a judgment 
notwithstanding the verdict is filed: (1) it 
may deny the motion for judgment and 
grant a new trial; (2) it may deny both 
motions; (3) it may grant both motions; (4) 
it may grant the motion for judgment but 
deny the motion for a new trial. Questions 
of appealability and of the power of the 
appellate court depend on which of these 
courses is followed. 

1. If the trial court denies the motion for 
judgment but grants the motion for a new 
trial, the order, as is true of orders for a 
new trial generally, is not appealable and 
the new trial will proceed. 

2. If the trial court denies both motions, 
the verdict stands and the appeal is from 
the judgment entered on the verdict. Both 
the refusal of judgment notwithstanding 
the verdict and errors of law in the trial 
may be raised on appeal. If the appellate 
court affirms, the case is finished. 

If the appellate court concludes that it 
was error to deny the motion for judg- 
ment, it has the same choices of ordering 
entry of judgment for the moving party, 
ordering a new trial, or remanding for the 
trial court to determine whether there 
should be a new trial, that it has when- 
ever it reverses a denial of a motion for 
judgment. In making that choice it will 



consider, but is not limited to, any grounds 
that the winning party below has asserted 
as appellee for grant of a new trial if the 
decision below is reversed. 

If the appellate court concludes that the 
court below was correct in denying the 
motion for judgment, it may also consider 
whether the court below erred in denying 
the alternative motion for a new trial. The 
scope of review of the denial of a new trial 
is the same as that under Rule 59 for 
denials of new trials generally. 

3. The trial court may grant both mo- 
tions. If it does so the grant of a new trial 
is conditional only and becomes effective 
only if the grant of judgment is reversed. 
The conditional grant of the new trial does 
not affect the finality of the judgment and 
appeal can be taken from the grant of 
judgment. In opposing the motion for 
judgment the party for whom the verdict 
was returned is entitled to urge that er- 
rors were committed during the trial that 
at least entitled him to a new trial rather 
than to any entry of judgment against 
him. He may file a motion for a new trial 
within ten days after entry of the judg- 
ment notwithstanding the verdict and, 
whether he has moved for a new trial or 
not, may argue on appeal that he is enti- 
tled to a new trial. 

If the appellate court affirms the grant 
of judgment the case is ended. If it re- 
verses the grant of judgment the new trial 
must proceed, in accordance with the con- 
ditional order by the trial court, "unless 
the appellate court has otherwise or- 
dered." 

4. The trial court may grant the motion 
for judgment notwithstanding the verdict 
and conditionally deny the new trial. The 
party in whose favor the motion for judg- 
ment was granted may assert on appeal 
that the denial of the alternative motion 
was error, and need not take a cross- 
appeal to do so. If the denial of the motion 
for new trial is challenged in this fashion 
the appellate court, after reversing the 
grant of judgment, will determine 
whether judgment should be entered on 
the verdict or whether there should be 
subsequent proceedings. 9 Wright & Mil- 
ler, supra § 2540. 

[Comment amended effective July 1, 
1994; July 1, 1997.] 



231 



Rule 50 



MISSISSIPPI COURT RULES 



JUDICIAL DECISIONS 



In general. 

Applicability. 

Bench trials. 

Conditional rulings. 

Damages. 

Directed verdict improperly granted. 

Judgment notwithstanding the verdict. 

Motions. 

Reconsideration. 

Requirements. 

Review. 

Waiver. 

Illustrative cases. 

In general. 

Finding that an insured had not pro- 
vided an explanation for the cause of the 
damage to the right side of his motorcycle 
from a left side slide accident, the trial 
court's grant of the insurer's motion for 
judgment notwithstanding the verdict 
was proper. King v. Progressive Gulf Ins. 
Co., 913 So. 2d 1065 (Miss. Ct. App. 2005). 

Trial court did not err in denjdng plain- 
tiffs' motion for judgment notwithstand- 
ing the verdict because when looking at all 
of the evidence, even that which plaintiffs 
argued was objectionable, the appellate 
court could not say that the jury could 
have only properly found for plaintiffs. As 
conflicting evidence existed as to whether 
the doctors' malpractice or CPR caused a 
tear in the anastomosis seam, which could 
cause fair minded jurors to reach different 
conclusions, granting the motion would 
have been improper. Poole v. Avara, 908 
So. 2d 716 (Miss. 2005). 

Trial court did not err in granting a 
directed verdict in favor of the casino on 
the patron's slip and fall complaint where 
the patron failed to present credible evi- 
dence to establish the necessary elements 
of her right to recover; the patron failed to 
produce credible evidence of actual or con- 
structive notice on the part of the casino; 
the patron produced no evidence to show 
how the substance came to be in and 
around the Jacuzzi, or whether the casino 
had actual or constructive notice of any 
not readily apparent condition of slipperi- 
ness in and around the Jacuzzi. Elgandy v. 
Boyd Miss., Inc., 909 So. 2d 1202 (Miss. 
Ct. App. 2005). 



After carefully reviewing the testimony 
of two experts in the light most favorable 
to the patient, it was clear that no ques- 
tion of fact existed concerning whether an 
orchiectomy (removal of a testicle), was a 
known risk of undergoing a vasectomy. 
There was no testimony to contradict the 
assertions made by the two expert physi- 
cians that removing a testicle was not a 
known risk faced by patients who chose to 
have a vasectomy; because the patient 
failed to present evidence that his experi- 
ence was a risk that was legitimately 
known to exist, he did not show that 
information given to him by the operating 
physician was inadequate, and therefore, 
a directed verdict for the latter physician 
was not improper. Whittington v. Mason, 
906 So. 2d 10 (Miss. Ct. App. 2004), aff d, 
905 So. 2d 1261 (Miss. 2005). 

Language, "unless the appellate court 
has otherwise ordered," in Miss. R. Civ. P. 
50(c) has not altered the interlocutory 
nature of a decision by the trial court to 
grant a new trial motion based on its 
decision that the verdict as to liability is 
against the weight of the evidence. Hearn 
V. Brown, 876 So. 2d 380 (Miss. Ct. App. 
2003), cert, denied, 878 So. 2d 66 (Miss. 
2004). 

Directed verdict should have been 
granted in favor of the corporation where 
the trial court should have taken the case 
from the jury because at no point in the 
trial was even a scintilla of evidence pre- 
sented to support the existence of a rene- 
gotiated contract; the manufacturer was 
provided the opportunity under law to 
amend the pleadings and present evi- 
dence to show a contract existed, but it 
failed to do so. Murray Envelope Corp. v. 
Atlas Envelope Corp., 851 So. 2d 426 
(Miss. Ct. App. 2003). 

Defendant's motions for a directed ver- 
dict, for judgment notwithstanding the 
verdict, or for new trial, operated as chal- 
lenges to the weight and sufficiency of the 
evidence supporting the verdict. Because 
the evidence in defendant's wire fraud 
trial was sufficient to support the jury's 
finding, defendant's motions were prop- 
erly denied. McGee v. State, 853 So. 2d 
125 (Miss. Ct. App. 2003), cert, denied, 
852 So. 2d 577 (Ct. App. 2003). 



232 



RULES OF CIVIL PROCEDURE 



Rule 50 



A motion for directed verdict does not 
apply to cases tried without a jury nor to 
those tried to the court with an advisory 
jury. Breland v. Gulfside Casino Partner- 
ship, 736 So. 2d 446 (Miss. Ct. App. 1999). 

The standards employed for a summary 
judgment and directed verdict are the 
same, just employed at different times 
during a proceeding. Breland v. Gulfside 
Casino Partnership, 736 So. 2d 446 (Miss. 
Ct. App. 1999). 

Motions for new trial are addressed to 
sound discretion of trial court, and require 
a lesser showing before they can be sus- 
tained than does the motion for j.n.o.v. 
Investors Property Mgt., Ltd. v. Watkins, 
Pitts, Hill & Assocs., 511 So. 2d 1379 
(Miss. 1987). 

Applicability. 

Trial court did not err in denying the 
owners' motion for a directed verdict 
where the evidence contradicted not only 
the fact that the decedent was not allowed 
in the office, but also the fact that the 
decedent had been demoted from invitee 
to licensee; therefore, the issue as to the 
decedent's status was disputed and as a 
result, it was a question of fact to be 
determined by the jury. Gibson v. Wright, 
870 So. 2d 1250 (Miss. Ct. App. 2004). 

Although circuit court's order referred 
to reduction in damages as a "remittitur" 
and as being "in lieu of a new trial," 
correct reading of order was that it was a 
judgment notwithstanding the verdict. In- 
vestors Property Mgt., Ltd. v. Watkins, 
Pitts, Hill & Assocs., 511 So. 2d 1379 
(Miss. 1987). 

Bench trials. 

On appeal in favor of the son in the 
daughter's action seeking to set aside a 
conveyance of land to the son, the motion 
made in the case was improperly denom- 
inated as a motion for a directed verdict 
under Miss. R. Civ. P. 50(a). In a bench 
trial, the proper motion to make at the 
close of the case-in-chief was a motion for 
involuntary dismissal under Miss. R. Civ. 
P. 41(b). Lynch v. Summerlin (In re 
Summerlin), 989 So. 2d 466 (Miss. Ct. 
App. 2008). 

Conditional rulings. 

In a slip and fall case where the trial 
court granted a JNOV and conditionally 



ordered a new trial, the appellate court 
lacked jurisdiction to disturb the trial 
court's order granting a new trial because 
it was an interlocutory determination that 
was not the proper subject of an appeal. 
Coleman v. Jitney Jungle Stores of Am., 
Inc., 894 So. 2d 610 (Miss. Ct. App. 2004). 
Subdivision (c) of this rule expressly 
provides for an -appeal where a judgment 
notwithstanding the verdict has been en- 
tered and a new trial conditionally 
granted. Spradhn v. Smith, 494 So. 2d 354 
(Miss. 1986). 

Damages. 

Plaintiffs' evidence was adequate such 
that a hypothetical reasonable juror could 
have found damages for plaintiffs at some 
amount above nominal damages, and 
therefore circuit court erred in granting 
defendants' motion for directed verdict at 
conclusion of plaintiffs' case-in-chief Wall 
V. Swilley, 562 So. 2d 1252 (Miss. 1990). 

Directed verdict improperly granted. 

Motion for a directed verdict was im- 
properly granted in a medical malpractice 
case because a jury could have found for a 
patient where an expert testified that the 
patient should have received targeted 
post-surgical physical therapy if a fixed 
abduction contracture existed on the date 
of the patient's last medical visit following 
a hip replacement; moreover, the patient 
demonstrated that a substantial leg 
length disparity still existed at the time of 
trial. Cantrell v. Green, 987 So. 2d 1002 
(Miss. Ct. App. 2007), writ of certiorari 
dismissed by 2008 Miss. LEXIS 373 (Miss. 
July 31, 2008). 

Whether ambulance service workers 
knew or should have known that a hospi- 
tal was not capable of managing the 
daughter's condition and whether their 
alleged negligence, if any, in taking her to 
that hospital was only a remote and thus 
not proximate cause of her death, was 
question to be determined by the jury; the 
directed verdict in favor of the workers 
was not proper, as the issue of causation 
was a jury question. Entrican v. Ming, 962 
So. 2d 28 (Miss. 2007). 

Circuit court erred in granting a di- 
rected verdict pursuant to Miss. R. Civ. P. 
50(a) in favor of a manufacturer in a 
driver's products liability suit; the driver 



233 



Rule 50 



MISSISSIPPI COURT RULES 



introduced sufficient evidence to allow a 
jury to find that the manufacturer was 
liable under Miss. Code Ann. § 11-1- 
63(a)(i)(4) for failure of the driver's air bag 
to deploy in a collision where the owner's 
manual and the salesman from whom the 
driver purchased the car stated that the 
air bag would deploy if the collision was 
hard enough. Forbes v. GMC, 935 So. 2d 
869 (Miss. 2006). 

Trial court erred granting an insurer's 
motion for directed verdict because issues 
as to whether the insurer breached a duty 
of confidentiality and whether negligent 
infliction of emotional distress occurred 
when the insurer allegedly used a pejora- 
tive term in describing an insured to a 
third party were issues for the jury to 
decide. Robley v. Blue Cross/Blue Shield, 
935 So. 2d 990 (Miss. 2006). 

Where an insured claimed damages for 
intentional and negligent infliction of 
emotional distress and for breach of con- 
tract for the release of her confidential 
medical information from her medical in- 
surer for its failure to maintain its duty of 
confidentiality, the trial court erred in 
granting a directed verdict to the insurer; 
the subscriber's agreement created a fidu- 
ciary relationship and the issue of the 
propriety of the disclosure was simply not 
suitable for directed verdict because the 
testimony at trial was mixed. Robley v. 
Blue Cross/Blue Shield, 935 So. 2d 1021 
(Miss. Ct. App. 2005), affirmed in part and 
reversed in part by, remanded by 935 So. 
2d 990, 2006 Miss. LEXIS 407 (Miss. 
2006). 

Where an insured claimed damages for 
intentional and negligent infliction of 
emotional distress and for breach of con- 
tract for the release of her confidential 
medical information from her medical in- 
surer for its failure to maintain its duty of 
confidentiality, the trial court erred in 
granting a directed verdict to the insurer; 
sufficient evidence existed at trial of a 
causal connection between the release of 
the insured's confidential information and 
her alleged injuries to allow her cause to 
survive the insurer's motion for directed 
verdict. Robley v. Blue Cross/Blue Shield, 
935 So. 2d 1021 (Miss. Ct. App. 2005), 
affirmed in part and reversed in part by, 
remanded by 935 So. 2d 990, 2006 Miss. 
LEXIS 407 (Miss. 2006). 



Judgment notwithstanding the ver- 
dict. 

Circuit court did not err when it denied 
defendant's motion for a judgment not- 
withstanding the verdict under Miss. R. 
Civ. R 50 because the evidence presented 
at trial was sufficient to allow a jury to 
conclude that: (1) the principal murdered 
the victim; (2) defendant knew that the 
principal had committed the murder; and 
(3) defendant knowingly assisted the prin- 
cipal in his attempt to evade the law. 
There was nothing in the record that 
would lead the court to question the jury's 
judgment that defendant was guilty of 
being an accessory after the fact to mur- 
der. Miller v. State, 18 So. 3d 898 (Miss. 
Ct. App. 2009). 

Plaintiff's motion for judgment notwith- 
standing the verdict ( JNOV) was properly 
denied because the testimony of the driver 
and defendants' expert was legally suffi- 
cient to support the verdict and it was for 
the jury to determine the weight and 
credibility of witnesses. Solanki v. Ervin, 
21 So. 3d 552 (Miss. 2009). 

Housing group's motion for judgment 
notwithstanding the verdict was properly 
denied where the appellate court could 
not, as a matter of law, determine that the 
entire liability was attributable to the 
errors of the architect; thus, it reversed 
and remanded for a new trial to determine 
what portion, if any, of the architectural 
firm's liability may be imposed to the 
architect individually. Lambert Cmty. 
Hous. Group, L.R v. Wenzel, 987 So. 2d 
468 (Miss. Ct. App. 2008). 

Trial court did not err in denying the 
landowners' motion for JNOV or new trial 
where the jury was free to accept or reject 
any or all of the testimony and evidence 
presented by Mississippi Transportation 
Commission (MTC) and the landowners; 
the jury accepted the testimony and evi- 
dence that supported MTC and rendered a 
verdict in its favor. Adcock v. Miss. Transp. 
Comm'n, 981 So. 2d 942 (Miss. 2008). 

Circuit court correctly denied the pa- 
tient's motion for judgment notwithstand- 
ing the verdict, or in the alternative, a 
new trial, where the record reflected suf- 
ficient evidence to sustain the jury verdict, 
a verdict that was not against the over- 
whelming weight of the evidence. Johnson 



234 



RULES OF CIVIL PROCEDURE 



Rule 50 



V. St. Dominies - Jackson Mem'l Hosp., 
967 So. 2d 20 (Miss. 2007). 

Trial court erred in failing to grant a 
judgment notwithstanding the verdict for 
the builder individually where the home- 
owner failed to meet the established stan- 
dards for piercing the corporate veil; there 
was no proof that the builder was using a 
shell corporation as a shield from personal 
hability. Rosson v. McFarland, 962 So. 2d 
1279 (Miss. 2007). 

Inadmissible evidence cannot contrib- 
ute to a legally sufficient evidentiary basis 
for a verdict, and therefore in a case 
involving breach of contract, computer 
generated invoices did not meet the stan- 
dard for admission under Miss. R. Evid. 
803(6) where there was no explanation of 
how they were created or testimony that 
the reprints were created at or near the 
time that the charges were incurred for 
the sale or lease of large equipment; as 
such, the trial court did not err by remov- 
ing this evidence when it considered a 
motion for judgment notwithstanding the 
verdict. H & E Equip. Servs., LLC v. 
Floyd, 959 So. 2d 578 (Miss. Ct. App. 
2007). 

In a breach of contract case, a chancel- 
lor did not err by refusing to grant a new 
trial under Miss. R. Civ. P. 59(a)(2) be- 
cause the decision was supported by the 
weight of the evidence where a renter 
testified that he failed to maintain insur- 
ance on property, as agreed upon by the 
parties to a rental contract; the chancellor 
was entitled to accept the version of 
events that he found most credible in 
determining whether or not the renter 
attempted to make a timely balloon pay- 
ment under the terms of the contract, and 
moreover a motion for judgment notwith- 
standing the verdict was also properly 
denied since the evidence was sufficient to 
support the judgment. Kendrix v. 
Huckaby, 955 So. 2d 950 (Miss. Ct. App. 
2007). 

Trial court did not err by denjdng the 
bojrfriend's motion for judgment notwith- 
standing the verdict in the husband's 
alienation of affection action because a 
reasonable juror could conclude that all 
elements of the tort were met; the evi- 
dence showed that: (1) the husband was 
granted a divorce on the grounds of adul- 



tery; (2) after the daughter of the wife and 
the boyfriend was born, the husband be- 
gan finding large amounts of cash 
throughout the house; (3) the wife told a 
coworker that the boyfriend had given her 
money to buy a car; (4) the coworker 
testified that the wife told her that if she 
quit her job the bo3rfriend would take their 
daughter away from her; and (5) the hus- 
band testified that his marriage failed 
because his wife could not resist all of the 
boyfriend's money and absent the boy- 
friend his marriage would have remained 
intact. Fitch v. Valentine, 959 So. 2d 1012 
(Miss. 2007), writ of certiorari denied by 
552 U.S. 1100, 128 S. Ct. 911, 169 L. Ed. 
2d 730, 2008 U.S. LEXIS 127, 76 U.S.L.W. 
3345 (2008). 

In an attorney disciplinary matter, a 
judgment notwithstanding the verdict, or 
in the alternative a new trial, was prop- 
erly denied because the attorney was 
given the opportunity to cross-examine 
the witnesses when a private reprimand 
was vacated in favor of a formal hearing, a 
telephone conference dealt only with a 
client's failure to appear, prior sanctions 
against the attorney were properly consid- 
ered, the evidence was sufficient to sup- 
port a finding that the attorney violated 
several ethical rules, and there were no 
discovery violations shown. Shah v. Miss. 
Bar, 962 So. 2d 514 (Miss. 2007). 

Defendant's motion for judgment not- 
withstanding the verdict was properly de- 
nied where the evidence was sufficient to 
convict defendant where the evidence pre- 
sented against defendant at trial included 
direct evidence by way of an audio-visual 
recording and testimony that defendant 
received money and handed the under- 
cover officer cocaine in exchange for that 
money Hudderson v. State, 941 So. 2d 221 
(Miss. Ct. App. 2006). 

Trial court erred in granting the pur- 
chasers' motion for judgment notwith- 
standing the verdict because the evidence 
did not support the granting of the motion 
as it was necessary to determine the 
proper amount of compensation due to 
both the purchasers for damages incurred 
due to fraudulent misrepresentation and 
the seller, for amounts due to him under 
promissory note. Garris v. Smith's G&G, 
LLC, 941 So. 2d 228 (Miss. Ct. App. 2006). 



235 



Rule 50 



MISSISSIPPI COURT RULES 



Where a car collision was caused when 
the driver of a commercial vehicle swerved 
to avoid hitting an unknown driver, the 
jury rendered a verdict for defendant 
driver and his employer in plaintiff's per- 
sonal injury suit; by setting aside the jury 
verdict, granting plaintiff's motion for a 
new trial, and directed that the new jury 
be peremptorily instructed that defendant 
driver was negligent as a matter of law, 
the trial court essentially granted the 
plaintiff a J.N.O.V. White v. Stewman, 932 
So. 2d 27 (Miss. 2006). 

State supreme court affirmed the grant 
of a judgment notwithstanding the verdict 
pursuant to Miss. R. Civ. P. 50 because the 
utility company was only held to a reason- 
able standard of care when the sagging 
power line involved in the accident was 
known to be a dead wire and not a live 
one. McFarland v. Entergy Miss., Inc., 919 
So. 2d 895 (Miss. 2005). 

Seller was entitled to a JNOV concern- 
ing all of the invoices associated with 
signed delivery tickets, delivery tickets 
with printed names, and delivery tickets 
for directly shipped items. The evidence 
pointed so overwhelmingly in favor of the 
seller that reasonable jurors could not 
have arrived at a finding that the pur- 
chaser was not indebted to the seller. 
Natchez Elec. & Supply Co. v. Johnson, 
968 So. 2d 444 (Miss. Ct. App. 2006), 
reversed by 2007 Miss. LEXIS 20 (Miss. 
Jan. 18, 2007). 

Appellate court affirmed the trial 
court's verdict and the denial of plaintiff's' 
motion for judgment notwithstanding the 
verdict; under the doctrine of res ipsa 
loquitor, the jury was not bound to make 
an inference of negligence. Since the em- 
ployee testified to the procedures he took 
before the trailer broke free, the jury was 
free to find defendants were not negligent, 
and the evidence was not overwhelmingly 
in favor of plaintiffs. Townsend v. Skelton, 
911 So. 2d 639 (Miss. Ct. App. 2005). 

Jury verdict defied all logic, as the evi- 
dence presented at trial established that 
the driver was negligent as a matter of 
law for failing to maintain a proper look- 
out and to yield the right-of-way by exe- 
cuting a turn across the insured's lane of 
travel. A verdict should have been re- 
turned in favor of the insured because the 



violation of said statutory duties by the 
driver was the unequivocal proximate 
cause of the insured's injury; even if the 
driver was not negligent per se, the facts 
presented at trial unconditionally demon- 
strated that the collision was the result of 
her negligence and the trial court commit- 
ted reversible error in failing to apply 
Miss. R. Civ. P. 50, and by denying the 
insured's motion for judgment notwith- 
standing the verdict. State Farm Auto Ins. 
Cos. V. Davis, 887 So. 2d 192 (Miss. Ct. 
App. 2004). 

Where during a difficult birth, the child 
incurred a condition called shoulder dys- 
tocia, and later suffered from Erb's Palsy, 
the physician's testimony, as well as his 
expert's testimony was that the physician 
was not negligent. Moreover, portions of 
the child's testimony suggested that the 
physician was not negligent in electing 
not to perform a cesarean section; accord- 
ingly, a reasonable hypothetical juror 
heard sufficient evidence to determine 
that the physician was not negligent and 
the trial court did not err by denying the 
child's motions for new trial or for judg- 
ment notwithstanding the verdict. 
Brumfield v. Langston, 906 So. 2d 48 
(Miss. Ct. App. 2004). 

Driver testified that the tire was low 
after the trailer was loaded with cattle, 
but that he did not know whether it had a 
leak. He further testified that the trailer 
was "tracking" properly while being 
towed, that nothing was out of the ordi- 
nary until the accident occurred, and that 
he did not lose control of his truck at the 
time of the accident wherein two wheels 
came off the trailer, striking the injured 
person's car; while reasonable and fair 
minded jurors may have reached a differ- 
ent conclusion, there was sufficient evi- 
dence introduced at trial to reasonably 
conclude that the driver was not negli- 
gent, and the trial court did not err in 
denying the injured person's motion for 
judgment notwithstanding the verdict. 
Ferguson v Snell, 905 So. 2d 516 (Miss. 
2004). 

Trial court did not err in refusing to 
grant a judgment notwithstanding the 
verdict in a case involving the destruction 
of trees because it was within the province 
of the jury to believe the testimony of 



236 



RULES OF CIVIL PROCEDURE 



Rule 50 



witnesses regarding who was responsible 
for the cutting; the evidence showed that a 
person not associated with a lumber com- 
pany actually cut down some of the own- 
er's trees. Smith v. Parkerson Lumber, 
Inc., 888 So. 2d 1197 (Miss. Ct. App. 2004). 

Due to disputed facts as to whether a 
nursing home was negligent and whether 
the elderly resident had suffered dam- 
ages, a trial court did not err in refusing to 
issue a peremptory instruction directing a 
verdict in favor of the resident. Dupree v. 
Plantation Pointe, L.P., 892 So. 2d 228 
(Miss. 2004). 

When the evidence presented by the 
State was taken together with all reason- 
able inferences, there was more than suf- 
ficient credible evidence in support of the 
court's denial of defendant's motions for 
judgment notwithstanding the verdict 
(JNOV) and a new trial; confidential in- 
formant identified defendant as the per- 
son who sold marijuana to a special agent. 
In addition, the special agent who pur- 
chased the marijuana also identified de- 
fendant as the individual who sold the 
marijuana to him. Anderson v. State, 904 
So. 2d 973 (Miss. 2004). 

Defendant's conviction for possession of 
cocaine with intent to distribute and the 
denial of his motion for judgment notwith- 
standing the verdict were proper where 
his proposal of scenarios that the jury 
could have considered, but did not, in 
rendering a guilty verdict did not create 
any reason to overturn the jury's verdict. 
Wilhams v. State, 892 So. 2d 272 (Miss. 
Ct. App. 2004), cert, denied, 901 So. 2d 
1273 (Miss. 2005). 

Due to the conflicting facts presented at 
trial, the outcome of the case hinged on 
the jury's determination of which rendi- 
tion of facts the jury believed occurred, 
and based on the injured person's own 
testimony regarding his approach to the 
tractor trailer which was negotiating a 
turn (and which the injured person skid- 
ded into from behind), and the testimony 
of the accident reconstructionist regard- 
ing the speeds and distances involved, the 
injured person's motion for judgment not- 
withstanding the verdict was properly de- 
nied. McKenzie v. Supervalu, Inc., 883 So. 
2d 1188 (Miss. Ct. App. 2004). 

After having a car repossessed, the in- 
jured party's complaint for damages was 



based on a claim of emotional distress 
which consisted primarily of loss of sleep, 
but the injured party neither sought nor 
received any medical treatment or profes- 
sional counseling regarding her alleged 
emotional distress. Thus, the trial court 
did not err in finding that the injured 
party's evidence was insufficient to sup- 
port a claim fgr emotional distress for 
ordinary negligence, and it properly 
granted the finance company's motion for 
a judgment notwithstanding the verdict. 
Wilson V. GMAC, 883 So. 2d 56 (Miss. 
2004). 

There was no evidence that the finance 
company or the repossessor did anything 
that would be seen as extreme or outra- 
geous and except for the injured party's 
complaint that she lost sleep, was upset, 
and had bad dreams; thus, there was no 
evidence that would support a judgment 
for emotional distress. Therefore, the trial 
court correctly determined that the in- 
jured party was not entitled to damages 
for emotional distress for outrageous con- 
duct, and it properly granted the finance 
company's and the repossessor's motion 
for a judgment notwithstanding the ver- 
dict. Wilson V. GMAC, 883 So. 2d 56 (Miss. 
2004). 

Trial court did not err in finding that 
recovery for breach of contract was not in 
order because the injured party was al- 
ready put back in the position she was 
originally in before any breach of contract 
and because (1) the injured party got a 
complete refund of the extension agree- 
ment payment which she accepted; (2) she 
did not intend to retain the car that was 
repossessed; (3) she surrendered attempts 
to re-claim the car once it was repos- 
sessed; (4) for a while she had use of the 
car without making any payments on the 
obligation; and (5) the amount brought by 
the sale of the car was substantially less 
than the obligation still owed on the car. 
Thus, the trial court did not err in grant- 
ing the finance company's motion for a 
judgment notwithstanding the verdict on 
the breach of contract claim. Wilson v. 
GMAC, 883 So. 2d 56 (Miss. 2004). 

Trial court did not err in finding that 
the injured party was not entitled to re- 
cover any damages for conversion of the 
car by the finance company because (1) 



237 



Rule 50 



MISSISSIPPI COURT RULES 



the evidence reflected the fact that the 
injured party abandoned the car because 
the injured party and her attorney told 
the finance company that the injured 
party did not want to keep the car; (2) the 
injured party accepted and cashed the full 
refund of what she paid for the extension 
agreement, receiving back what she had 
paid to the finance company; (3) despite 
making no payments on the account, the 
injured party had use of the car until it 
was repossessed; and (4) the car sold for 
considerably less than the secured obliga- 
tion owed on the car. Thus, the trial court 
did not err in granting the finance compa- 
ny's motion for a judgment notwithstand- 
ing the verdict on the conversion claim. 
Wilson V. GMAC, 883 So. 2d 56 (Miss. 
2004). 

Trial court did not err in finding that 
the repossessor did not commit a breach of 
the peace because (1) the repossession 
agent testified that the injured party told 
him that he could have the car; (2) he 
testified that the injured party gave him 
the keys to the car; (3) he testified that he 
did not curse at the injured party or her 
sister; (4) there was no physical alterca- 
tion involved in the repossession; and (5) 
the injured party testified that she was 
not touched by either of the repossession 
agents and that she relinquished the car's 
keys to the repossession agents. Thus, the 
trial court properly granted the repossess- 
or 's motion for a judgment notwithstand- 
ing the verdict on the breach of the peace 
claim. Wilson v. GMAC, 883 So. 2d 56 
(Miss. 2004). 

In the former employees' malicious 
prosecution action against the corporation 
after a federal court had dismissed the 
corporation's defamation action, although 
the trial court denied the corporation's 
motion for judgment notwithstanding the 
verdict, the Mississippi Supreme Court, 
after reviewing all the evidence in the 
record regarding the question of malice, 
determined that only one conclusion could 
have reasonably been drawn from the 
evidence. It was so overwhelmingly in 
favor of the corporation, which had 
brought the underlying action to clear its 
name as to damaging statements by the 
former managers, that reasonable persons 
could not have arrived at a contrary ver- 



dict; thus, the judgment of the trial court 
was reversed, and judgment was rendered 
in favor of the corporation. Condere Corp. 
V. Moon, 880 So. 2d 1038 (Miss. 2004). 

In a negligence action, the trial testi- 
mony clearly established that the accident 
occurred when the parties tried to avoid 
colliding with the so-called "phantom car," 
for which the driver was never identified, 
which had abruptly stopped in front of the 
injured person's vehicle and was then 
struck from behind by a defendant driver 
who was also forced to take evasive action. 
Thus, after a county court jury found 
defendant driver was not at fault, on ap- 
peal, the circuit court correctly reversed 
the county court's order granting the in- 
jured person's motion for a judgment not- 
withstanding the verdict and sua sponte 
award of damages; the circuit court also 
properly retained jurisdiction and granted 
a new trial in the circuit court. Baham v. 
Sullivan, — So. 2d — , 2004 Miss. App. 
LEXIS 714 (Miss. Ct. App. July 27, 2004), 
opinion withdrawn by, substituted opinion 
at, remanded by 924 So. 2d 580, 2005 
Miss. App. LEXIS 1032 (Miss. Ct. App. 
2005). 

In a wrongful death action, in the wife's 
strict liability claim against the tobacco 
company, because there was evidence that 
there existed no safe cigarette and that 
the tobacco company constantly did re- 
search to provide the safest, consumer- 
desirable cigarette possible, that the wife 
was not aware that her husband had ever 
tried to quit smoking and, therefore, 
would have avoided any danger from the 
product, and that the wife put on evidence 
only to support the unreasonably danger- 
ous aspect of the case and failed to provide 
evidence of any type of defect, the trial 
court did not err in refusing to grant a 
judgment notwithstanding the verdict or, 
in the alternative, a new trial. Nunnally v. 
R.J. Reynolds Tobacco Co., 869 So. 2d 373 
(Miss. 2004). 

Trial court did not err in denying the 
mother's motion for directed verdict as to 
the issue of negligence where it was un- 
disputed that both the mother and em- 
ployee violated the applicable traffic laws 
on the day of the accident; however, the 
negligence and reasonableness of the em- 
ployee's actions was a question for the 



238 



RULES OF CIVIL PROCEDURE 



Rule 50 



jury, who found that a reasonable person 
in the mother's position would recognize 
the need to slow her vehicle as she ap- 
proached the intersection. Clark v. Clark, 
863 So. 2d 1027 (Miss. Ct. App. 2004). 

Because conflicting facts were pre- 
sented by the driver and the injury victim 
as to the automobile accident that caused 
the injury victim's damages, the entire 
case hinged on the jury's determinations, 
therefore, the trial court did not err in 
denying the injury victim's motion for 
judgment notwithstanding the verdict. 
Hopkins V. Schaeffer, 840 So. 2d 737 
(Miss. Ct. App. 2003). 

Where an insurer sought indemnity 
against a company for a personal injury 
claim the insurer had paid on behalf of its 
insured, who was sued as a result of an 
automobile accident in which the compa- 
ny's employee was involved, the trial court 
erred in denying the company's motion for 
a directed verdict as the insurer had no 
legal obligation to pay the plaintiffs who 
sued the employee and the company. T & 
S Express, Inc. v. Liberty Mut. Ins. Co., 
847 So. 2d 270 (Miss. Ct. App. 2003). 

Trial court properly denied the patient's 
motion for judgment notwithstanding the 
verdict because there existed a conflict in 
the evidence as to whether the physician 
had exercised reasonable care, and where 
such conflict existed, a peremptory in- 
struction was not appropriate. Daughtry 
V. Kuiper, 852 So. 2d 675 (Miss. Ct. App. 
2003). 

If facts and inferences properly consid- 
ered point so overwhelmingly in favor of 
movant that reasonable men could not 
have arrived at a contrary verdict, grant- 
ing motion is required, but if there is 
substantial evidence opposed to motion, 
evidence of such quality and weight that 
reasonable and fairminded men in exer- 
cise of impartial judgment might reach 
different conclusions, then motion should 
be denied and jury's verdict allowed to 
stand. Coca Cola Bottling Co. v. Reeves, 
486 So. 2d 374 (Miss. 1986). 

Motions. 

Directed verdicts against both defen- 
dants were properly entered by trial 
judge, even though motions for directed 
verdicts did not appear in record, since it 
was clear from record that lower court and 



attorneys were under impression that mo- 
tions for directed verdicts had been made 
but not recorded by court reporter. South 
Cent. Bell Tel. Co. v. Parker, 491 So. 2d 
212 (Miss. 1986). 

Reconsideration. 

A trial court cannot itself entertain its 
own reconsideration under subsection (b). 
Edwards v. Roberts, 771 So. 2d 378 (Miss. 
Ct. App. 2000). 

Requirements. 

Granting of a directed verdict in favor of 
a telecommunications company in a driv- 
er's negligence action was appropriate be- 
cause the driver failed to prove that a 
sagging wire was more likely than not 
caused by a negligent act of the telecom- 
munications company. The driver failed to 
meet the second element of res ipsa loqui- 
tur and without the application of that 
doctrine, there was no evidence of the 
telecommunications company's negligence 
for a jury to consider. Gray v. BellSouth 
Telcom., Inc., 11 So. 3d 1269 (Miss. Ct. 
App. 2009). 

Directed verdict on the issue of the 
negligence of a driver was properly 
granted by the trial court, where unrebut- 
ted testimony established that the driver 
was negligent in crossing in front of an 
oncoming motorist when the collision oc- 
curred; when reviewing requests for pe- 
remptory instructions, courts considered 
the evidence in the light most favorable to 
the non-moving party, giving that party 
the benefit of all favorable inferences that 
could reasonably be drawn from the evi- 
dence, and Mississippi rules and case law 
allowed for questions to be removed from 
the jury's consideration when there ex- 
isted no factual question for the jury to 
resolve under Miss. R. Civ. R 50(a). 
Entergy Miss., Inc. v. Bolden, 854 So. 2d 
1051 (Miss. 2003). 

Action against physician for unautho- 
rized removal of intrauterine device pre- 
sented a classic jury question of credibil- 
ity, since both parties testified to events 
which could not be reconciled, and there- 
fore entry of directed verdict was im- 
proper. Fox V. Smith, 594 So. 2d 596 (Miss. 
1992). 

When a motion for directed verdict or 
j.n.o.v. is made, court must consider all 



239 



Rule 50 



MISSISSIPPI COURT RULES 



evidence in light most favorable to the 
nonmoving party; in considering evidence 
and all reasonable inferences, court must 
determine whether the evidence is so 
overwhelmingly against nonmoving party 
that no reasonable juror could have found 
in their favor. Illinois Cent. R.R. v. White, 
610 So. 2d 308 (Miss. 1992). 

A lesser showing is required for new 
trial than that necessary to grant a mo- 
tion for j.n.o.v.; reason behind this rule is 
that a motion for j.n.o.v. challenges legal 
sufficiency of evidence to support the ver- 
dict, whereas motion for new trial chal- 
lenges weight of the evidence. James v. 
Mabus, 574 So. 2d 596 (Miss. 1990). 

When a party moves for directed verdict 
at close of evidence, circuit court must 
consider evidence before it at that time in 
light most favorable to non-moving party, 
giving that party the benefit of all favor- 
able inferences that may reasonably be 
drawn therefrom; supreme court takes a 
like view of evidence when considering, on 
appeal, whether circuit court erred in di- 
recting a verdict. Gray v. Edgewater 
Landing, Inc., 541 So. 2d 1044 (Miss. 
1989). 

Where a motion for j.n.o.v. has been 
made, trial court must consider all evi- 
dence in light most favorable to non-mov- 
ant, who must also be given benefit of all 
favorable inferences that may be reason- 
ably drawn from evidence; if facts and 
inferences so considered point so over- 
whelmingly in favor of movant that rea- 
sonable men could not have arrived at a 
contrary verdict, granting the verdict is 
required, but if there is substantial evi- 
dence opposed to motion, i.e., evidence of 
such quality and weight that reasonable 
and fair-minded men in exercise of impar- 
tial judgment might reach different con- 
clusions, motion should be denied and 
jury's verdict allowed to stand. Maxwell v. 
Illinois Cent. G.R.R., 513 So. 2d 901 (Miss. 
1987). 

Where motion for judgment notwith- 
standing the verdict has been made, trial 
court must consider all evidence — not just 
evidence which supports non-movant's 
case — in light most favorable to party 
opposed to motion; credible evidence tend- 
ing to support non-movant's case must be 
presumed true, and non-movant must also 



be given benefit of all favorable inferences 
that may reasonably be drawn from the 
evidence. Coca Cola Bottling Co. v. 
Reeves, 486 So. 2d 374 (Miss. 1986). 

Review. 

Miss. R. Civ. R 50(c) gives the Supreme 
Court of Mississippi the authority to re- 
view the grant of a new trial. White v. 
Stewman, 932 So. 2d 27 (Miss. 2006). 

Court reviewing denial of motion for 
judgment notwithstanding the verdict 
must consider evidence in light most fa- 
vorable to non-moving party, giving that 
party benefit of all favorable inferences 
that may be reasonably drawn from evi- 
dence, and if facts so considered point so 
overwhelmingly in favor of moving party 
that reasonable men could not have ar- 
rived at a contrary verdict, court is re- 
quired to reverse and render; however, if 
there is substantial evidence in support of 
verdict, that is, evidence of such quality 
and weight that reasonable and fair 
minded jurors in exercise of impartial 
judgment might have reached different 
conclusions, affirmance is required. Mc- 
Millan V. King, 557 So. 2d 519 (Miss. 
1990). 

Trial judge's determination whether 
jury issue has been presented should be 
given great respect on appeal, although 
neither jury verdicts nor trial court deni- 
als of judgments notwithstanding the ver- 
dict may change impossibilities into fact 
nor convert possibilities into probabilities. 
Coca Cola Bottling Co. v. Reeves, 486 So. 
2d 374 (Miss. 1986). 

Waiver. 

Where individuals failed to file a motion 
for a judgment notwithstanding the ver- 
dict, they were procedurally barred from 
challenging the sufficiency of the weight of 
the evidence relied upon for the jury ver- 
dict on appeal. Thus, the jury verdict for 
the driver was affirmed. Lamartiniere v. 
Jones, 915 So. 2d 1112 (Miss. Ct. App. 
2005). 

Where defendant convicted of aggra- 
vated assault claimed that the evidence 
presented at trial was legally insufficient 
to support his conviction, the appellate 
court was procedurally barred from con- 
sidering this issue. Defendant never filed 



240 



RULES OF CIVIL PROCEDURE 



Rule 50 



a JNOV motion. Wilks v. State, 909 So. 2d 
1252 (Miss. Ct. App. 2005). 

Any error by trial court in denying de- 
fendant's motion for directed verdict upon 
close of plaintiff's case was waived when 
defendant introduced evidence in its own 
behalf James W. Sessums Timber Co. v. 
McDaniel, 635 So. 2d 875 (Miss. 1994). 

Any error in failing to grant directed 
verdict at end of plaintiff's case was 
waived when defendant introduced evi- 
dence in its own behalf. PACCAR Fin. 
Corp. V. Howard, 615 So. 2d 583 (Miss. 
1993). 

Illustrative cases. 

Trial court's error in denying the 
stopped driver's request for a directed 
verdict on the issue of liability was not 
harmless. There was a substantial dis- 
crepancy between the amount of damages 
proven by the stopped driver and the 
amount of damages awarded by the jury; 
the stopped driver was entitled to all past, 
present, and future medical damages and 
compensation for pain and suffering prox- 
imately caused by the other driver's neg- 
ligence and although the stopped driver 
submitted medical bills equal to 
$234,316.49, the jury only awarded 
$9,131. Thompson v. Dung Thi Hoang 
Nguyen, 86 So. 3d 251 (Miss. Ct. App. 
2011), reversed by 86 So. 3d 232, 2012 
Miss. LEXIS 195 (Miss. 2012), reversed by 
86 So. 3d 232, 2012 Miss. LEXIS 195 
(Miss. 2012). 

Where a patient sought emergency 
medical care after his windshield shat- 
tered and glass sprayed into his face and 
eyes, where the treating doctors allegedly 
misdiagnosed his condition and delayed 
the patient's receipt of proper care, and 
where the patient was transferred to an- 
other hospital where he underwent sur- 
gery and suffered a retinal detachment 
during the procedure, which left him al- 
most blind in one eye, the trial court did 
not err in granting a directed verdict in 
favor of the treating doctors in the pa- 
tient's medical malpractice case because, 
although the patient's expert witness es- 
tablished the applicable standard of care 
and an alleged breach thereof, he failed to 
express with a reasonable degree of med- 
ical certainty that the doctors' alleged 
misdiagnosis and the resulting delay in 



proper treatment caused or contributed to 
the patient's vision loss. The expert testi- 
fied that retinal detachment was a known 
complication of the surgery and was un- 
able to say whether it was the glass in the 
patient's eye, blunt force trauma, the sur- 
gery, or the alleged improper care that 
caused the retinal detachment. Ryals v. 
Bertucci, 26 So,^3d 1090 (Miss. Ct. App. 
2009), writ of certiorari denied by 27 So. 
3d 404, 2010 Miss. LEXIS 53 (Miss. 2010). 

Motions for a directed verdict and judg- 
ment notwithstanding the verdict, under 
Miss. R. Civ. R 50(a), (b), were properly 
denied in a medical malpractice suit 
against a physician and medical clinic 
because the physician did not meet his 
duty of care by requesting lab results to 
rule out a life-threatening infection, and 
his failure to follow up with the lab prox- 
imately caused the patient's persistent 
vegetative state and eventual death. Es- 
tate of Jones V. Phillips, 992 So. 2d 1131 
(Miss. 2008). 

In a products liability action, several 
manufacturers were entitled to a judg- 
ment notwithstanding the verdict because 
the trial court determined that it had 
erroneously admitted the testimony of a 
consumer's expert witness on the issue of 
causation, as the studies upon which the 
expert relied did not support his opinion 
that benzene exposure caused small-cell 
lymphocytic lymphoma, and because the 
consumer offered no other evidence to 
establish causation. Watts v. Radiator 
Specialty Co., 990 So. 2d 143 (Miss. 2008). 

Where a decedent suffering from Al- 
zheimer's, dementia, and other problems 
signed a will naming the decedent's re- 
cently-married widow as the sole benefi- 
ciary, sufficient evidence supported a ju- 
ry's verdict against the widow and it was 
not error to deny the widow's post trial 
motion because a confidential relationship 
existed and a presumption of undue influ- 
ence arose which the widow failed to rebut 
since the decedent was dependent on the 
widow and the attorney did not question 
the decedent as to the decedent's under- 
standing that the decedent was leaving 
the decedent's daughters nothing. Pope v. 
White (In re Estate of Pope), 5 So. 3d 427 
(Miss. Ct. App. 2008), writ of certiorari 
denied by 11 So. 3d 1250, 2009 Miss. 
LEXIS 132 (Miss. 2009). 



241 



Rule 50 



MISSISSIPPI COURT RULES 



In a breach of contract case between a 
rehabilitative services company, a nursing 
home, and their two owners, a covenant 
not to hire employees was ambiguous in 
nature because it was impossible to tell if 
the covenant embraced all past, present, 
or future employees; therefore, a directed 
verdict was properly granted on this issue 
because the agreement constituted an un- 
reasonable restraint on trade. Cain v. 
Cain, 967 So. 2d 654 (Miss. Ct. App. 2007). 

In a breach of contract case between a 
rehabilitative services company, a nursing 
home, and their two owners, a directed 
verdict was properly granted on the issue 
of punitive damages since they were not 
warranted in an ordinary breach of con- 
tract case. Cain v. Cain, 967 So. 2d 654 
(Miss. Ct. App. 2007). 

Directed verdict in favor of the medical 
providers in the patient's medical mal- 
practice action was inappropriate because 
the patient's proffered expert was a neu- 
rologist who had never performed middle 
ear surgery, which was the type of surgery 
performed on the patient; thus, that prof- 
fered expert was unable to offer an opin- 
ion on the appropriate standard of care 
that was owed to the patient. Troupe v. 
McAuley, 955 So. 2d 848 (Miss. 2007). 

Where an employee was mounting a 
moving locomotive when a foot slipped 
due to mud, causing the employee to fall 
and sustain serious leg injuries, the rail- 
road was liable to the employee for dam- 
ages under the Federal Employer's Liabil- 
ity Act, 45 U.S.C. § 51; the trial court was 
correct in denying the railroad's motion 
for a directed verdict where the evidence 
showed the railroad was warned of the 
slippery conditions, but did nothing to 
remedy the potential hazard. Canadian 
Nat'iyill. Cent. R.R. v. Hall, 953 So. 2d 
1084 (Miss. 2007). 

Trial court erred in finding that the son 
presented insufficient evidence that his 
father died as a result of the collision, and 
therefore erred in granting defendants' 
motion for a directed verdict on that 
ground because the accident report con- 
tained an indication that the father was 
killed in the accident. Birrages v. 111. Cent. 
R.R., 950 So. 2d 188 (Miss. Ct. App. 2006). 

Because the plaintiff offered no author- 
ity for his argument that a trial judge has 



no authority to raise the lack of proof of an 
essential element as justification for 
granting, a motion for directed verdict, his 
argument was procedurally barred. 
Birrages v. 111. Cent. R.R., 950 So. 2d 188 
(Miss. Ct. App. 2006). 

Trial court did not err in granting de- 
fendants' motion for a directed verdict 
because the son did not present a prima 
facie case of negligence as to his failure to 
maintain a proper lookout claim in his 
wrongful death claim for the death of his 
father in a collision with a train; the son's 
expert did not offer any testimony that 
indicated just how the engineer's and the 
conductor's breach of their duty to main- 
tain a proper lookout was the proximate 
cause of the father's death, and he admit- 
ted that they could not have done any- 
thing to prevent the collision in the split- 
second to two seconds that the father 
pulled out in front of the train. Birrages v. 
111. Cent. R.R., 950 So. 2d 188 (Miss. Ct. 
App. 2006). 

In a tort action arising from an incident 
in a retail store, a family's motion for 
judgment nothwithstanding the verdict or 
a motion for a new trial were properly 
denied as there were two versions of 
events; the evidence was not overwhelm- 
ing in favor of the family where the store 
offered evidence that one member was 
removed due to loud and disruptive be- 
havior and an attempt to conceal mer- 
chandise. Anderson v. McRae's, Inc., 931 
So. 2d 674 (Miss. Ct. App. 2006). 

Where a car collision was caused when 
the driver of a commercial vehicle swerved 
to avoid hitting an unknown driver, rea- 
sonable minds could have differed as to 
liability; the jury's verdict for defendant 
driver and his employer was supported by 
substantial evidence, and therefore the 
trial court erred by setting aside the ver- 
dict and granting the plaintiff a new trial 
under Miss. R. Civ. R 50(c). Anderson v. 
McRae's, Inc., 931 So. 2d 674 (Miss. Ct. 
App. 2006). 

In a case in which a bank sued a bor- 
rower for deficiency on a promissory note 
that was secured by the borrower's car, 
the trial court properly granted the bank's 
motion for a directed verdict; the trial 
court was correct in concluding that the 
note had not been paid off because of the 



242 



RULES OF CIVIL PROCEDURE 



Rule 50 



borrower's failure to provide insurance 
coverage for the car. McDaniel v. Citizens 
Bank, 937 So. 2d 26 (Miss. Ct. App. 2006), 
writ of certiorari denied by 936 So. 2d 367, 
2006 Miss. LEXIS 480 (Miss. 2006). 

Directed verdict was properly entered 
in favor of a driver in a wrongful death 
case because speeding was insufficient to 
show liability since it was not the cause of 
an accident with a lawnmower, there was 
no duty to blow a horn under Miss. Code 
Ann. § 63-7-65( 1) for a sudden action, and 
she used due care in passing and giving 
the lawnmower space. Lias v. Flowers, 955 
So. 2d 337 (Miss. Ct. App. 2006), writ 
denied by 956 So. 2d 228, 2007 Miss. 
LEXIS 212 (Miss. 2007). 

In an action under the Age Discrimina- 
tion in Employment Act of 1967, 29 
U.S.C.S. §§ 621-634, there was substan- 
tial evidence from which the jury could 
have inferred that the employer (a beer 
distributor), wanted to fire the employee 
due to his age. Same was based on memos 
of the chief executive which basically de- 
rided older employees as a burden, the 
conflict apparent by the employee's other- 
wise most recent job rating which was 
excellent, and the fact that several other 
employees had mistakenly delivered out- 
of-date beer but they were not fired. In 
sum, there was sufficient evidence for the 
jury to find that the employer's non-dis- 
criminatory reasons for firing the former 
employee for alleged poor performance 
were pretextual and the employer's mo- 
tion for judgment notwithstanding the 
verdict was properly denied. Cash Distrib. 
Co. V. Neely, 947 So. 2d 317 (Miss. Ct. App. 
2006), affirmed by 947 So. 2d 286, 2007 
Miss. LEXIS 23 (Miss. 2007). 

Directed verdict in favor of the corpora- 
tion in the driver's products liability ac- 
tion pursuant to the Mississippi Products 
Liability Act, Miss. Code Ann. § 11-1-63, 
was proper under Miss. R. Civ. P. 50(a), 
because there was no evidence that the 
driver or her husband relied on any ex- 
press warranty or other factual represen- 
tation about the air bag in question before 
the accident. Forbes v. GMC, 929 So. 2d 
958 (Miss. Ct. App. 2005), affirmed in part 
and reversed in part by, remanded by 935 
So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 
2006). 



Directed verdict in favor of an insurer 
was affirmed as the individual failed to 
prove by clear and convincing evidence 
that the insurer committed fraud because 
the individual rejected the insurer's first 
offer to pay for some medical expenses, 
and the individual did not prove that the 
insurer had made a promise to pay some 
medical expenses. Moreover, the individ- 
ual failed to establish the existence of a 
fiduciary relationship that would hold the 
insurer to a higher duty of care. 
Mooneyham v. Progressive Gulf Ins. Co., 
910 So. 2d 1223 (Miss. Ct. App. 2005). 

Directed verdict was improperly 
granted to a driver in a personal injury 
case because the incorrect standard of 
review was used on appeal; an insurer 
presented evidence showing that a driver 
was involved in the accident, and medical 
expenses should not have been excluded 
since there was no requirement that rea- 
sonableness be shown prior to admission; 
however, a directed verdict filed by the 
insurer was properly denied because the 
driver should have been permitted to re- 
but the evidence presented. Alfa Mut. Ins. 
Co. V. Cascio, 909 So. 2d 174 (Miss. Ct. 
App. 2005). 

Trial court erred in entering judgment 
for a limited partner in an action for 
negligent misrepresentation, fraud, and 
breach of contract against his former part- 
ners; the limited partner failed to prove 
that his former partners had made a 
fraudulent statement, intending to induce 
him to sell his interest in the partnership, 
and the former partners' promise to bid on 
his property at a foreclosure sale could not 
form the basis for negligent misrepresen- 
tation, because it involved future conduct. 
There was no breach of contract, because 
the foreclosure sale did not occur within 
the time specified by the contract; the trial 
court erred by den3dng the former part- 
ners' motion for judgment notwithstand- 
ing the verdict. Moran v. Fairley, 908 So. 
2d 805 (Miss. Ct. App. 2005)', substituted 
opinion at 919 So. 2d 969, 2005 Miss. App. 
LEXIS 1044 (Miss. Ct. App. 2005). 

Directed verdict for defendant under 
Miss. R. Civ. P. 50(a) was proper in a 
products liability action under Miss. Code 
Ann. § 11-1-63 where a wife was injured 
in an automobile accident and there was 



243 



Rule 50 



MISSISSIPPI COURT RULES 



evidence that her air bag did not deploy 
because the only express warranty made 
was that the automobile had air bags, 
there was no evidence that plaintiffs jus- 
tifiably relied on statements in the own- 
ers' manual, and plaintiffs offered no ex- 
pert testimony to show that the impact 
was hard enough that the air bag should 
have deployed. Forbes v. GMC, — So. 2d 
— , 2005 Miss. App. LEXIS 95 (Miss. Ct. 
App. Feb. 1, 2005), opinion withdrawn by, 
substituted opinion at, modified by 929 
So. 2d 958, 2005 Miss. App. LEXIS 716 
(Miss. Ct. App. 2005). 

In a trip and fall case where the injured 
person asserted that Christmas garland 
on a handrail prevented her from break- 
ing her fall on a staircase, no reasonable 
hypothetical juror could have found negli- 
gence on the part of the casino for hanging 
said garland on the staircase in an unob- 
trusive manner, and in fact, the injured 
person's own witnesses testified that they 
used the handrail with no significant 
problem. Accordingly, the trial judge was 
not in error for directing a verdict in favor 
of the casino. Tucker v. Riverboat Corp., 
905 So. 2d 741 (Miss. Ct. App. 2004). 

Where the jury returned a verdict for 
the customer who had injured her shoul- 
der when she slipped and fell in the store, 
the trial court erred in granting a JNOV. 
The store manager testified that the store 
had knowledge of a leaky freezer that 
created the dangerous condition causing 
the customer's injuries, but failed to rem- 
edy the problem in more than a year. 
Coleman v. Jitney Jungle Stores of Am., 
Inc., 894 So. 2d 610 (Miss. Ct. App. 2004). 

District court should have granted the 
motion for judgment notwithstanding the 
verdict of defendants, a state university 
and professors, regarding the applicabil- 
ity of the Mississippi Tort Claims Act in a 
doctoral student's action alleging that de- 
fendants' conduct prevented her from re- 
ceiving her doctoral degree because al- 
though the student claimed that the 
action was in contract, clearly tort claims 
were before the jury, and the statute of 
limitations had run. Univ. of S. Miss. v. 
Wilhams, 891 So. 2d 160 (Miss. 2004). 

District court should have granted the 
motion for judgment notwithstanding the 
verdict of defendants, a state university 



and professors, in a doctoral student's 42 
U.S.C.S. § 1983 claim, because when the 
verdict was rendered, there were not indi- 
vidual defendants in the case — only the 
university and the professors in their offi- 
cial capacity and therefore defendants 
were immune. Univ. of S. Miss. v. Wil- 
hams, 891 So. 2d 160 (Miss. 2004). 

Considering the evidence in the light 
most favorable to the injured person, it 
was clear that reasonable jurors could 
have found the casino was negligent, ei- 
ther because the lighting in the area was 
poor, the steps presented a slippery sur- 
face, or were too narrow to negotiate 
safely. The facts and testimony were not 
so one-sided as to require that a reason- 
able jury reach a contrary decision, the 
the trial court properly denied the casino 
its motion for judgment notwithstanding 
the verdict. HWCC-Tunica, Inc. v. Jen- 
kins, 908 So. 2d 150 (Miss. Ct. App. 2004). 

What was readily apparent from the 
record excerpt was that the patient's own 
expert agreed that based on the physi- 
cian's diagnosis at the time the physician 
saw the patient in the emergency room, 
there was no indication that the patient 
needed to be transferred to a surgeon or a 
burn center, and the treatment the physi- 
cian rendered was appropriate and within 
the standard of care, thus, the trial court 
properly granted the physician's motion 
for a directed verdict. Medicomp, Inc. v. 
Marshall, 878 So. 2d 193 (Miss. Ct. App. 
2004), cert, denied, 878 So. 2d 67 (Miss. 
2004), cert, denied, — U.S. — , 125 S. Ct. 
671, 160 L. Ed. 2d 508 (2004). 

Conflicting evidence raised a genuine 
fact issue as to whether appellant was 
actually the president of appellee com- 
pany and thus had fiduciary duties to- 
wards it; therefore, the trial court erred in 
granting appellees a directed verdict on 
this issue. Ross v. Nat'l Forms & Sys. 
Group, Inc., — So. 2d — , 2004 Miss. App. 
LEXIS 70 (Miss. Ct. App. Feb. 3, 2004), 
opinion withdrawn by, substituted opinion 
at 882 So. 2d 245, 2004 Miss. App. LEXIS 
603 (Miss. Ct. App. 2004). 

In a suit against a bar for furnishing 
alcohol to a minor who later caused an 
auto accident, the trial court erred by 
directing a verdict for the bar, as the 
evidence created a fact question as to 



244 



RULES OF CIVIL PROCEDURE 



Rule 50 



whether the bar knew or should have 
known that the buyer of drinks (who pre- 
sented a false Mississippi driver's license 
showing he was 21) was giving them to 
minors. 

In a medical negligence case, as the 
patient was treated by defendant doctor 
not at the request of defendant hospital, 
but at the request of her primary care 
physician, the hospital was not vicari- 
ously liable for the doctor's alleged negli- 
gence and was properly granted a directed 
verdict. Kent v. Baptist Mem'l Hosp. - N. 
Miss., Inc., 853 So. 2d 873 (Miss. Ct. App. 
2003). 

Where the trial court granted defen- 
dant's motion for judgment notwithstand- 
ing the verdict (JNOV) and conditionally 
granted his motion for a new trial on 
liability, the JNOV was reversed, but the 
verdict in plaintiff's favor was not rein- 
stated, as the appellate court lacked juris- 
diction to rule on the interlocutory order 
granting a new trial. Hearn v. Brown, 876 
So. 2d 380 (Miss. Ct. App. 2003), cert, 
denied, 878 So. 2d 66 (Miss. 2004). 

In a personal injury suit, as the jury 
could reasonably have inferred from 
plaintiff's testimony that defendant prop- 
erty owner had actual notice of the hid- 
den, dangerous condition of the part of his 
roof through which plaintiff fell, but failed 
to timely warn him of the latent defect, 
the trial court erred in entering judgment 
notwithstanding the verdict in favor of the 
owner. Hearn v. Brown, 876 So. 2d 380 
(Miss. Ct. App. 2003), cert, denied, 878 So. 
2d 66 (Miss. 2004). 

Will contestants' motions for directed 
verdict should have been granted where 
those present during the will's execution 
found the decedent lucid, alert, oriented, 
and capable of identifying the natural 
objects of her bounty; there was no sug- 
gestion that the decedent was unaware of 
what she was doing or that her personal 
desires had been overwhelmed by some- 
one else. McClendon v. McClendon (In re 
Estate of Pigg), 877 So. 2d 406 (Miss. Ct. 
App. 2003), cert, denied, 878 So. 2d 66 
(Miss. 2004). 

Where an accident occurred at a grocery 
store parking lot intersection, the evi- 
dence indicated that a reasonable juror 
could easily have concluded that the driv- 



er's view was obstructed at the intersec- 
tion, so that the driver chose to creep up to 
get a better look at oncoming traffic, and it 
was not factually impossible for a reason- 
able juror to have believed that the in- 
jured person failed to maintain a proper 
look out, and reasonable control of the 
injured person's vehicle, by continuing on 
in the injured person's lane at 35 miles per 
hour, without attempting to slow or stop, 
before colliding with the driver's vehicle, 
thus the trial court did not err in denying 
the injured person's motion for a directed 
verdict. Busick v. St. John, 856 So. 2d 304 
(Miss. 2003). 

In a suit against a bar for furnishing 
alcohol to a minor who later caused an 
auto accident, the trial court erred by 
directing a verdict for the bar, as the 
evidence created a fact question as to 
whether the bar knew or should have 
known that the buyer of drinks (who pre- 
sented a false Mississippi driver's license 
showing he was 21) was giving them to 
minors. Moore v. K&J Enters., 856 So. 2d 
621 (Miss. Ct. App. 2003), cert, dismissed, 
2004 Miss. LEXIS 198 (Miss. 2004). 

Where a medical malpractice defen- 
dant's interrogatory response negligently 
identified an expert as a urologist rather 
than an expert in infectious diseases, but 
adequately described the proposed sub- 
stance of the testimony, the trial court did 
not abuse its discretion in allowing the 
testimony, or in denying the patient's sur- 
viving relatives' motions for directed ver- 
dict, judgment notwithstanding the ver- 
dict, and a new trial. Buskirk v. Elliott, 
856 So. 2d 255 (Miss. 2003). 

Trial court applied the correct legal 
standard in directing verdicts on both the 
plaintiffs' negligence claims against the 
car manufacturer, following their minor 
daughter's death caused by an air bag 
that deployed, as the jury was properly 
instructed on the plaintiffs' claim of de- 
sign defect under the the Mississippi 
Products Liability Act, Miss. Code Ann. 
§ 11-1-63, and the additional negligence 
instructions would have been redundant. 
Palmer v. Volkswagen of Am., Inc., 905 So. 
2d 564 (Miss. Ct. App. 2003), aff'd in part 
and rev'd in part, remanded, 904 So. 2d 
1077 (Miss. 2005). 

Customer's photograph, which was not 
shown to the jury, created a question of 



245 



Rule 51 



MISSISSIPPI COURT RULES 



fact upon which reasonable minds could 
differ, therefore, the question should have 
been submitted to the jury and the trial 
court erred in granting the store a di- 
rected verdict. Ducksworth v. Wal-Mart 
Stores, Inc., 832 So. 2d 1260 (Miss. Ct. 
App. 2002). 

The trial court erroneously directed a 
verdict for the defendant restaurant in an 
action by a patron who was injured when 
his chair collapsed where (1) there was 
evidence that all the chairs in the restau- 
rant had been there for some time and 
that, on occasion, chairs were discovered 
to be in less-than-serviceable condition, 
(2) the restaurant owner and others testi- 
fied to periodic inspections of all the chairs 
to attempt to detect those that might be in 
need of repair, but there was no evidence 
as to the regularity or the thoroughness 
with which these inspections were under- 
taken, and (3) there was evidence that the 
very chair in which the patron was sitting 
when the accident occurred had been the 
subject of previous repairs. Thomas v. 
Smith, 786 So. 2d 418 (Miss. Ct. App. 
2001). 

Overwhelming weight of evidence was 
totally contrary to verdict rendered for 

Rule 51. Instructions to jury. 

(a) Procedural instructions. At the commencement of and during the course 
of a trial, the court may orally give the jury cautionary and other instructions 
of law relating to trial procedure, the duty and function of the jury, and may 
acquaint the jury generally vv^ith the nature of the case. 

(b) Substantive instructions. Each party to an action may submit six 
instructions on the substantive law of the case. However, the court may permit 
the submission of additional instructions as justice requires. The court may 
instruct the jury of its own initiative. 

(1) When submitted. Instructions proposed by parties shall be submitted to 
the court at the pre-trial hearing as provided by Rule 16. In the event a 
pre-trial hearing is not conducted, proposed instructions shall be delivered to 
the court and counsel for all parties not later than twenty-four hours prior to 
the time the action is scheduled to be tried. 

(2) Identification. The court's substantive instructions shall be numbered 
and prefixed with the letter C. Plaintiff's instructions shall be numbered and 
prefixed with the letter P. Defendant's instructions shall be numbered and 
prefixed with the letter D. In multi-party actions, Roman numerals shall be 
used to identify the proposed instructions of similarly aligned parties; the 
Roman numerals shall be placed after the alphabetical designation of P or D, 



defendant in negligence action stemming 
from automobile accident, where there 
was no evidence of any negligence by 
plaintiff, and defendant's negligence was 
established as a matter of law. McKinzie v. 
Coon, 656 So. 2d 134 (Miss. 1995). 

Trial court acted correctly when it de- 
nied defendant's motion for judgment not- 
withstanding the verdict; since causation 
and the fact of some damage were essen- 
tially conceded, circuit court had no au- 
thority to set aside the verdict. City of 
Jackson v. Ball, 562 So. 2d 1267 (Miss. 
1990). 

Where plaintiff admitted in documents 
he signed, and under cross-examination, 
that his contract with defendant had been 
fully performed, trial court erred in failing 
to direct a verdict for defendant. Brewer v. 
Wilhams, 542 So. 2d 1186 (Miss. 1989). 

Any error from trial court's refusal to 
direct a verdict for plaintiff on liability 
was rendered harmless, since on evidence 
before it, the jury's damage award to 
plaintiff was not unreasonably low. Dunn 
v. Jack Walker's Audio Visual Center, 544 
So. 2d 829 (Miss. 1989). 



246 



RULES OF CIVIL PROCEDURE 



Rule 51 



as the case may be, and shall conform to the sequential listing of parties 
plaintiff or defendant as stated in the complaint. 

Instructions shall not otherwise be identified with a party. 

(3) Objections. No party may assign as error the granting or the denying of 
an instruction unless he objects thereto at any time before the instructions are 
presented to the jury; opportunity shall be given to make the objection out of 
the hearing of the jury. All objections shall be stated into the record and shall 
state distinctly the matter to which objection is made and the grounds therefor. 

(c) Instructions to be written. Except as allowed by Rule 51(a), all instruc- 
tions shall be in writing. 

(d) When read; available to counsel and jurors. Instructions shall be read by 
the court to the jury at the close of all the evidence and prior to oral argument; 
they shall be available to counsel for use during argument. Instructions shall 
be carried by the jury into the jury room when it retires to consider its verdict. 

COMMENT 



Rule 51(a) and (b) tracks the require- 
ments of the Supreme Court of Missis- 
sippi in Newell v. State, 308 So.2d 68 
(Miss. 1975), and Newell v. State, 308 
So.2d 71 (Miss. 1975), in mandating that 
the trial judge bear the responsibility for 
properly instructing the jury. The remain- 
der of Rule 51 is, substantially, identical 
to Rules 14 and 28, Uniform Mississippi 
Circuit Court Rules. 

Rule 51(b)(1) requires that jury instruc- 
tions be submitted either at the pretrial 
hearing (MRCP 16) or, in the event a 
pretrial hearing is not held, at least 
twenty-four hours prior to the scheduled 
time for trial. Rule 16(k) guarantees that 
instructions may be amended or supple- 
mented as necessary. 

Rule 51(b)(2) is intended simply to im- 
plement a uniform method for identifying 
instructions for purposes of the trial re- 
cord; it is not intended either to indicate to 



nor conceal from the jury the identify of 
the originators of instructions. 

Rule 51(b)(3) parallels prior Mississippi 
practice for objecting to instructions. See 
Miss. Code Ann. § 11-7-155 (1972) (in- 
structions become part of record); Gowan 
V. Batson, 288 So.2d 468 (Miss. 1974) 
(continuing objection during trial to mat- 
ters on which jury was later instructed 
preserved objection); Creel v. General Mo- 
tors Corp., 233 So.2d 105 (Miss. 1970) 
(objection to instruction not made before 
instruction is delivered to jury is waived). 

Rule 51(d) preserves traditional Missis- 
sippi practice permitting attorneys to ar- 
gue the case after the jury has been in- 
structed. Further, the rule ensures" that 
attorneys will have access to the instruc- 
tions during their arguments and that the 
instructions may be carried into the jury 
room by the jury. See Miss. Code Ann. 
§ 11-7-155 (1972) (jury may use instruc- 
tions during deliberations). 



JUDICIAL DECISIONS 



Deliberations. 

Instructions. 

Objections. 

Deliberations. 

Although the jury was not given written 
jury instructions when it retired to delib- 
erate, a new trial was not required where 
(1) the failure to send the instructions to 
the jury room was accidental, (2) the writ- 



ten instructions were given to the jury 
prior to the verdict, and (3) all of the 
instructions were read to the jury before it 
retired to deliberate. McNeil v. Bourn, 721 
So. 2d 663 (Miss. Ct. App. 1998). 

Instructions. 

In a negligence case (slip and fall), the 
trial judge abused his discretion in twice 
orally reinstructing the jury. That was not 



247 



Rule 52 



MISSISSIPPI COURT RULES 



because two jury instructions likely con- 
fused and misled the jury asto the correct 
principle of law; additionally, the custom- 
er's objections werenot waived because 
she objected to both instructions in a jury 
instruction conference held out of the ju- 
ry's presence before the instructions were 
given. Savory v. First Union Nat'l Bank of 
Del., 954 So. 2d 930 (Miss. 2007). 

Where defendant failed to object to a 
jury instruction that omitted an element 
listed in the indictment (the value of the 
tools) before the trial court, the objection 
was waived on appeal. Hill v. State, 929 
So. 2d 338 (Miss. Ct. App. 2005). 

Defendant could not take issue with 
sufficiency of jury instructions on appeal, 
where record revealed absolutely no objec- 
tion to instructions given by trial judge, 
and none of the instructions submitted by 
defendant was refused. North River 
Homes, Inc. v. Bosarge, 594 So. 2d 1153 
(Miss. 1992). 



to say that a trial judge could never in- 
struct a jury that the verdict was not in 
proper form; however, the trial judge 
stretched his comments beyond the 
bounds of merely seeking to have the jury 
clarify the verdict, and the conflicting spe- 
cial verdicts, coupled with the series of 
intervening erroneous oral instructions 
constituted reversible error. HWCC-Tu- 
nica. Inc. v. Jenkins, 908 So. 2d 150 (Miss. 
Ct. App. 2004). 

Subsection (d) was substantially com- 
plied with, notwithstanding that the jury 
was not given the written instructions as 
required by the rule when its members 
retired to deliberate, where the jury did 
receive the written instructions prior to 
the jury verdict, all of the instructions 
which the trial court granted were read to 
the jury prior to its deliberations, the 
failure to send the instructions into the 
jury room was unintentional and acciden- 
tal, and no prejudice was shown. McNeil v. 
Bourn, 721 So. 2d 663 (Miss. Ct. App. 
1998). 

Objections. 

Finding in favor of the bank in the 
customer's action for fraud was improper 

Rule 52. Findings by the court. 

(a) Effect. In all actions tried upon the facts vv^ithout a jury the court may, 
and shall upon the request of any party to the suit or when required by these 
rules, find the facts specially and state separately its conclusions of law 
thereon and judgment shall be entered accordingly. 

(b) Amendment. Upon motion of a party filed not later than ten days after 
entry of judgment or entry of findings and conclusions, or upon its own 
initiative during the same period, the court may amend its findings or make 
additional findings and may amend the judgment accordingly. The motion may 
accompany a motion for a new trial pursuant to Rule 59. When findings of fact 
are made in actions tried by the court without a jury, the question of the 
sufficiency of the evidence to support the findings may thereafter be raised 
regardless of whether the party raising the question has made in court an 
objection to such findings or has filed a motion to amend them or a motion for 
judgment or a motion for a new trial. (Amended effective, July 1, 1997.) 

ADVISORY COMMITTEE HISTORICAL NOTE 



Effective July 1, 1997, Rule 52(b) was 
amended to clarify that a motion to amend 
the trial court's findings must be filed not 



later that ten days after entry of judg- 
ment. — So. 2d — (West Miss. Cases). 
[Adopted effective July 1, 1997.] 



248 



RULES OF CIVIL PROCEDURE 



Rule 52 



COMMENT 



Rules 52(a) is adapted from Miss. Code 
Ann. § 11-7-87 (1972); however, the stat- 
ute indicates that findings of fact may be 
entered only upon the request of a party, 
while the rule authorizes the court to 
enter its findings whether or not re- 
quested. In Tricon Metals & Services, Inc. 
V. Topp, 516 So.2d 236 (Miss.1987), the 
Court stated that in cases of any signifi- 
cant complexity the trial court generally 
should find the facts specially and state 
separately its conclusions of law. 

Under Rule 52(b) the court, upon the 
motion of a party or upon its own motion, 
may amend its findings or make addi- 
tional findings for up to ten days after the 
entry of judgment. Again, this ten-day 
period is computed irrespective of the date 



a term of court is adjourned. See MRCP 6 
(c). 

The purpose of Rule 52(b) is to enable 
the appellate court to obtain a correct 
understanding of the factual issues deter- 
mined by the trial court as a basis for the 
conclusions of law and judgment entered 
thereon. A party who failed to prove his 
strongest case is not entitled to a second 
opportunity by moving to amend a finding 
of fact and conclusion of law; the motion 
must raise questions of subtance by seek- 
ing reconsideration of material findings or 
conclusions. See 9 Wright & Miller, Fed- 
eral Practice and Procedure, Civil § 2582 
(1971). 

[Comment amended effective March 1, 
1989.1 



JUDICIAL DECISIONS 



In general. 

Applicability. 

Construction. 

Findings. 

Procedure. 

Review. 

Special findings. 

Time. 

Waiver on appeal. 

In general. 

Miss R. Civ. P. 52 applies only to deci- 
sions made after some proceeding in 
which contested facts need to be evalu- 
ated; it does not apply to a summary 
judgment. Estes v. Bradley, 954 So. 2d 455 
(Miss. Ct. App. 2006). 

Because the appellate court was unable 
to determine the basis of a chancellor's 
decision, as the record contained neither a 
transcript of the proceedings in the trial 
court, nor any factual or legal foundation 
for the chancellor's decision to modify a 
decree, the case was remanded to the trial 
court for the chancellor to create a record 
of his factual findings as well as the legal 
basis for his decision. Daley v. Daley, 909 
So. 2d 106 (Miss. Ct. App. 2005). 

Trial court's order requiring the county 
to assume some responsibility for the 
landowner's ditch and culvert, to fill in the 
ditch and service the culvert, was clear 



error where nothing in the record pro- 
vided any factual support for the county's 
responsibility for creating the ditch, or 
after its creation by unknown persons, for 
the county's assuming any responsibility 
for it. Wash. County v. Graves, 875 So. 2d 
1114 (Miss. Ct. App. 2004). 

Chancellor did not abuse his discretion 
in failing to enter specific factual findings 
without a request to do so where the 
information gleaned from the record sug- 
gested that the issue was straightforward, 
not complex. Thompson v. Miss. Dep't of 
Human Servs., 856 So. 2d 739 (Miss. Ct. 
App. 2003). 

Where a circuit court issued a six — 
page opinion and order setting forth in 
detail its analysis of the case, and the 
opinion clearly related the evidence the 
circuit court found probative to each ap- 
plicable issue, the order complied with 
Miss. R. Civ. P. 52, and the circuit court 
did not err in den3dng the plaintiff's re- 
quest for particularized findings of fact 
and conclusions of law. T.K. v. Simpson 
County Sch. Dist., 846 So. 2d 312 (Miss. 
Ct. App. 2003). 

Trial court's failure, after a bench trial, 
to enter findings of fact and conclusions of 
law, was not error, as the case was far 
from complex, and no party requested it to 
make such findings. Miss. DOT v. 



249 



Rule 52 



MISSISSIPPI COURT RULES 



Trosclair, 851 So. 2d 408 (Miss. Ct. App. 
2003). 

Where a trial judge declined to make 
specific findings of fact on request of a 
party, but made general findings of fact 
and conclusions of law, he technically com- 
plied with the requirements of Miss. R. 
Civ. P. 52. Golleher v. Robertson, 830 So. 
2d 694 (Miss. Ct. App. 2002). 

Trial court was permitted to use its 
discretion when deciding whether to issue 
findings of fact and conclusions of law; 
when a party requested the trial court to 
do so, however, the trial court's duty be- 
came obligatory. Culbert v. State, 800 So. 
2d 546 (Miss. Ct. App. 2001). 

The rule does not require a trial court to 
specifically refer to a party's exhibits in a 
dispositive order of a petition for relief. 
Magee v. State, 759 So. 2d 464 (Miss. Ct. 
App. 2000). 

Where a party fails to request special 
findings from the trial court under subsec- 
tion (a), it waives any issue related to the 
absence of findings of fact. Metropolitan 
Life Ins. Co. v. Aetna Cas. & Sur. Co., 728 
So. 2d 573 (Miss. 1999). 

Subsection (a) does not require the 
court on its own initiative to set out the 
findings of fact relied on to support its 
judgment. Metropolitan Life Ins. Co. v. 
Aetna Cas. & Sur. Co., 728 So. 2d 573 
(Miss. 1999). 

Subsection (a) has been complied with if 
generalized findings of fact and conclu- 
sions of law have been made by the chan- 
cellor. TXG Intrastate Pipeline Co. v. 
Grossnickle, 716 So. 2d 991 (Miss. 1997). 

Chancellor is not required to make a 
finding of fact and conclusion of law in 
absence of a timely made request. Bowser 
V. Tootle, 556 So. 2d 1373 (Miss. 1990). 

Applicability. 

Chancellor erred in awarding a father 
custody of his children as the chancellor 
did not refer to the factors in the best 
interests of the children or identify what 
Albright factors were considered, which 
was important as several of the factors 
that might have been in the father's favor 
were altered within a month of the court's 
ruling when the father and the children 
moved to California; specific findings were 
mandated due to the nature of the case, 
and Miss. Unif. Ch. Ct. R. 4.01 and Miss. 



R. Civ. P. 52(a) did not apply. Parra v. 
Parra, 65 So. 3d 872 (Miss. Ct. App. 2011). 

Construction. 

In cases of any complexity, tried upon 
the facts without a jury, trial court gener- 
ally should find facts specially and state 
its conclusions of law thereon. Tricon Met- 
als & Services, Inc. v. Topp, 516 So. 2d 236 
(Miss. 1987). 

Findings. 

Since a mother failed to raise to the 
chancellor her challenge to the reason- 
ableness of the child-support guidelines, 
she was barred from challenging the chan- 
cellor's failure to make specific findings of 
fact on the reasonableness of the guide- 
lines. Robinson v. Brown, 58 So. 3d 38 
(Miss. Ct. App. 2011). 

On a mother's counterclaim against a 
father for contempt concerning child sup- 
port, medical insurance, and medical bills, 
a chancellor did not err by failing to pro- 
vide specific findings of fact and conclu- 
sions of law under Miss. R. Civ. P. 52(a) 
because there was no record of any re- 
quest by either counsel for specific find- 
ings of fact and conclusions of law. Farrior 
V. Kittrell, 12 So. 3d 20 (Miss. Ct. App. 
2009). 

Where a son sought to set aside a war- 
ranty deed that transferred property from 
the son's mother to a daughter, the case 
was properly dismissed for failure to pros- 
ecute because, inter alia, it was not an 
abuse of discretion to refuse to provide 
specific findings of fact and conclusions of 
law since it was discretionary and the 
bench opinion was sufficient to explain 
and support the adjudication of the mat- 
ter. Cox V. Cox, 976 So. 2d 869 (Miss. 
2008). 

If appellant sellers were dissatisfied 
with a county court's lack of specific fac- 
tual findings regarding the factors for 
awarding reasonable attorneys' fess, they 
were provided a mechanism for requiring 
that the court make such findings pursu- 
ant to Miss. R. Civ. P. 52(a), however, they 
did not make such a request, and the fees 
awarded were not so extreme as to be 
unreasonable. Cavagnaro v. Coldwell 
Banker Alfonso Realty Inc., 995 So. 2d 
754 (Miss. Ct. App. 2008), writ of certio- 



250 



RULES OF CIVIL PROCEDURE 



Rule 52 



rari denied by 997 So. 2d 924, 2008 Miss. 
LEXIS 534 (Miss. 2008). 

Miss. R. Civ. P. 56 summary judgment 
hearing is not an action "tried upon the 
facts without a jury" so as to trigger Miss. 
R. Civ. P. 52 apphcabihty; therefore, in a 
claim brought under the Fair Credit Re- 
porting Act, 15 U.S.C. § 1681 et seq., a 
trial court did not err by failing to make 
findings of fact, and at any rate the issues 
in the case were addressed by the trial 
court. Harmon v. Regions Bank, 961 So. 
2d 693 (Miss. 2007). 

Where a trial court made several find- 
ings on the record regarding its decision to 
deny a motion for reconsideration in a 
case filed under the Federal Employers 
Liability Act, no reversal was required; 
the findings were sufficiently situated as 
to allow an appellate court to make its 
own determinations. 111. Cent. R.R. v. Mc- 
Daniel, 951 So. 2d 523 (Miss. 2006), writ 
of certiorari denied by 549 U.S. 1208, 127 
S. Ct. 1332, 167 L. Ed. 2d 78, 2007 U.S. 
LEXIS 2107, 75 U.S.L.W. 3435 (2007). 

Finding against the employer, a rail- 
road, in the employee's asbestos-related 
claims originally brought under the Fed- 
eral Employers Liability Act was appro- 
priate because the record was more than 
sufficient for appellate review; thus, the 
circuit court did not abuse its discretion in 
den3ring the employer's request for specific 
findings of fact and conclusions of law. 111. 
Cent. R.R. v Acuff, 950 So. 2d 947 (Miss. 
2006), writ of certiorari denied by 549 U.S. 
1280, 127 S. Ct. 1826, 167 L. Ed. 2d 321, 
2007 U.S. LEXIS 3060, 75 U.S.L.W. 3497 
(2007). 

Miss. R. Civ. P. 52 was not applicable to 
the facts of the appeal at bar because the 
circuit court was functioning as an appel- 
late court in reviewing the city's determi- 
nation to terminate two city streets, pre- 
cluding further expansion of said streets. 
Charles E. Morgan Constr. Co. v. City of 
Starkville, 909 So. 2d 1145 (Miss. Ct. App. 
2005). 

Trial court, in a tort claim brought by a 
business against a city, did not err; al- 
though abbreviated, its findings of facts 
and conclusions of law in its order and 
judgment were sufficient. City of Jackson 
V. Internal Engine Parts Group, Inc., 903 
So. 2d 60 (Miss. 2005). 



Trial court erred in failing to provide 
findings of fact and conclusions of law 
when requested to do so by party to di- 
vorce. West V. West, 881 So. 2d 188 (Miss. 
2004). 

Because the trial court failed to provide 
findings of fact and conclusions of law 
regarding the contracts case, the appel- 
late court could not determine whether an 
error had occurred; the case was reversed 
and remanded. Fulop v. Suta, 847 So. 2d 
893 (Miss. Ct. App. 2002). 

Procedure. 

Chancellor on remand was required to 
make separate and specific findings of fact 
and conclusions of law, in view of convo- 
luted and complex nature of facts and 
issues involved. TXG Intrastate Pipeline 
Co. V. Grossnickle, 716 So. 2d 991 (Miss. 
1997). 

Whether to adopt verbatim, in whole or 
in part, proposed findings of fact and con- 
clusions of law submitted by a party is 
within the trial court's sound discretion. 
Rice Researchers, Inc. v. Hiter, 512 So. 2d 
1259 (Miss. 1987). 

Review. 

In divorce proceedings, a chancellor ap- 
plied the correct legal standards and 
made findings of fact that were supported 
by substantial evidence in compliance 
with Miss. R. Civ. P. 52(a) and did not err 
in denying a husband's request for addi- 
tional findings and legal conclusions. 
Swiderski v. Swiderski, 18 So. 3d 280 
(Miss. Ct. App. 2009), writ of certiorari 
denied by 19 So. 3d 82, 2009 Miss. LEXIS 
465 (Miss. 2009). 

There was no merit to the state's argu- 
ment, based upon Miss. R. Civ. P. 52, that 
the owner waived his right to appeal since 
he failed to file a motion to reconsider 
after entry of the summary judgment, 
because after the entry of summary judg- 
ment, which decided all issues between all 
parties involved, the party seeking to ap- 
peal need only file a notice of appeal 
within the appropriate time to preserve 
his appeal, and the parties were not pre- 
cluded from filing post-judgment motions, 
but they were not required to file further 
documents to preserve the appeal. 1999 
Buick Century v State, 966 So. 2d 841 
(Miss. Ct. App. 2007). 



251 



Rule 52 



MISSISSIPPI COURT RULES 



Although the supreme court preferred 
that trial courts made separate particu- 
larized findings of fact and conclusions of 
law, a trial court's general findings of fact 
and conclusions of law did not require 
reversal, and the findings and conclusions 
technically conformed to the requirements 
of Miss. R. Civ. P. 52. 111. Cent. R.R. v. 
McDaniel, — So. 2d — , 2006 Miss. LEXIS 
316 (Miss. June 15, 2006), opinion with- 
drawn by, substituted opinion at 951 So. 
2d 523, 2006 Miss. LEXIS 468 (Miss. 
2006). 

Chancery court properly upheld a 
school board's decision to not renew a 
teacher's contract for the 2004-05 school 
year. The chancellor did not err in not 
making specific findings of fact pursuant 
to Miss. R. Civ. P. 52(a), since the board 
was the finder of fact, not the chancellor. 
Gordon v. Lafayette County Sch. Dist., 
923 So. 2d 260 (Miss. Ct. App. 2006). 

In the tax sale purchaser's appeal of the 
lower court's setting aside the conveyance 
to the purchaser after the property owner 
failed to redeem, the case was neither 
complex nor complicated. While the chan- 
cellor should have made findings of fact 
and conclusions of law, the chancery 
court's failure to do so did not constitute 
reversible error. Lawrence v. Rankin, 870 
So. 2d 673 (Miss. Ct. App. 2004). 

Court of appeals erred in ruling that a 
chancellor's findings were insufficient to 
support granting a divorce to a wife on the 
grounds of the husband's habitual cruel 
and unusual treatment; the record 
showed that the husband's indictment 
and arrest on three counts of attempted 
murder, his pressuring the wife to run the 
family business after his arrest, and his 
probable placement of child pornography 
on the family computer, caused the wife to 
suffer from and be treated for depression. 
Bodne v. King, 835 So. 2d 52 (Miss. 2003). 

Though after a bench trial the chancel- 
lor failed to cite any legal authority in her 
order, the case was not factually complex 
and the final judgment adequately stated 
her findings of fact and aptly explained 
what she did; thus, her order did not 
violate Miss. R. Civ. P. 52(a). Pilgrim Rest 
Missionary Baptist Church v. Wallace, 835 
So. 2d 67 (Miss. 2003). 

The purpose of Miss. R. Civ. P. 52(a) is to 
obtain a detailed explanation of a bench 



trial result when requested, and it does 
not matter that the court dictates one in 
open court for the court reporter to tran- 
scribe, or dictates one while in chambers 
for a secretary to type; it is the content 
that matters, not the place at which the 
judge is sitting when expressing his rea- 
soning. Davis V. Davis, 829 So. 2d 712 
(Miss. Ct. App. 2002). 

Chancery court was required by the 
appellate court to make findings of fact in 
a divorce proceeding the chancellor had 
dismissed without making findings of fact 
because the case was hotly contested and 
the facts complex, and the failure to make 
findings of fact in the case was an abuse of 
discretion. Snoddy v. Snoddy, 791 So. 2d 
333 (Miss. Ct. App. 2001). 

Trial court erred in failing to provide 
findings of fact and conclusions of law 
when requested to do so by party to di- 
vorce, requiring remand. Lowery v. Low- 
ery, 657 So. 2d 817 (Miss. 1995). 

Where chancery court was requested to 
make particularized findings of fact and 
conclusions of law but declined to do so, 
making general findings of fact and con- 
clusions of law instead, chancellor techni- 
cally complied with requirements of this 
rule, and although particularized findings 
would have aided court on appeal, rever- 
sal was not warranted. Century 21 Deep 
S. Properties, Ltd. v. Corson, 612 So. 2d 
359 (Miss. 1992). 

Special findings. 

Siblings waived their issue on appeal 
regarding the validity of the decedent's 
inter vivos transfer to the daughter since 
the siblings failed to request special find- 
ings regarding the decedent's cash gift 
under Miss. R. Civ. P. 52(a). Howell v. May, 
983 So. 2d 313 (Miss. Ct. App. 2007), writ 
of certiorari denied by 981 So. 2d 298, 
2008 Miss. LEXIS 268 (Miss. 2008). 

Where trial court modified an agreed 
judgment of paternity to adjust the fa- 
ther's visitation with his minor child, the 
judgment consisted of twelve pages and 
included detailed fact-findings and legal 
conclusions on the issues of modification 
of custody and visitation. The father was 
not entitled to have the chancellor revisit 
the judgment to make additional findings. 
Bahus V. Gaines, 908 So. 2d 791 (Miss. Ct. 
App. 2005), writ of certiorari denied by 



252 



RULES OF CIVIL PROCEDURE Rule 53 

920 So. 2d 1008, 2005 Miss. LEXIS 495 In a divorce case, a former husband's 
(Miss. 2005). request for findings of fact was time- 
Where contempt case pending before barred because it was filed more than 10 
lower court in divorce action was simple, days after entry of a final judgment, pur- 
there was no need for special findings of guant to Miss. R. Civ P. 52(b); the fact that 
facts and conclusions of law in the absence ^ chancellor granted the request did not 
of a request by either party. Morreale v j^^ke the motion timely since the chancel- 
Morreale, 646 So. 2d 1264 (Miss. 1994). j^^ ^^^^^^ authority to extend the time 
Time. limitation. The^ chancellor's decision to 
In a divorce case, a former husband's grant the request and make additional 
appeal was time-barred because it was not findings was only harmless error. Ander- 
perfected within 10 days of a final judg- son v Anderson, 8 So. 3d 264 (Miss. Ct. 
ment entered in January 2007; the hus- App. 2009). 
band's post-trial motions were untimely 

under Miss. R. Civ. P. 52 and Miss. R. Civ. Waiver on appeal. 

P 59, and a chancellor did not have the since a mother failed to assert an al- 

authority to extend the time for such. The 1^^^^ error post-trial to the chancellor, as 

January 2007 judgment was final because itted by Miss. R. Civ. P 52, she 

It attended to all of the issues before the ^^^^^^ ^^^ ^^^^ ^^ complain as to this 

chancellor, including the support of two . i o u- t5 o 

1,1 J ^u -^ ui J- ^ u X- issue on appeal. Kobmson V. Brown, — So. 

minor children, the equitable distribution „, omiA/r- a t t^-vto oi /tvt- r^^ 

of marital assets and liabilities, whether 3d_ 2011 Miss. App. LEXIS 31 (M^^^^ 

to award a former wife alimony, and ^pp. Jan. 25, 2011), opimon withdrawn 

whether to award the former wife attor- ^y, substituted opinion at, modified by 58 

ney's fees. Anderson v. Anderson, 8 So. 3d ^o. 3d 38, 2011 Miss. App. LEXIS 160 

264 (Miss. Ct. App. 2009). (Miss. Ct. App. 2011). 

RESEARCH REFERENCES 

ALR. Power of Successor or Substituted or Enter Judgment on Testimony Heard 
Judge, in Civil Case, to Render Decision by Predecessor. 84 A.L.R.5th 399. 

Rule 53. Masters, referees, and commissioners. 

(a) Appointment and compensation. The court may appoint one or more 
persons in each county to be masters of the court, and the court in which any 
action is pending may appoint a special master therein. As used in these rules, 
the word "Master" includes a referee, an auditor, an examiner, a commissioner, 
and a special commissioner. The master shall receive a reasonable compensa- 
tion for services rendered, as fixed by law or as allowed by the court and taxed 
in the costs and collected in the same manner as the fees of the clerk. 

(b) Qualifications. The master shall be an attorney at law, authorized to 
practice law before all courts of the State of Mississippi. However, in extraor- 
dinary circumstances where the finding to be made is of a complex, technical, 
non legal nature, a person other than an attorney possessing the requisite 
qualifications of a person skilled in the field, area, or subject of the inquiry may 
be appointed as a master; additionally, persons other than attorneys may be 
appointed as special commissioners to conduct judicially-ordered sales and 
partitions of real or personal property. 

(c) Reference: when made. With the written consent of the parties, the court 
may refer any issue of fact or law to a master. Otherwise, a reference shall be 
made only upon a showing that some exceptional condition requires it. 

253 



Rule 53 MISSISSIPPI COURT RULES 

(d) Powers. The order of reference to the master may specify or hmit his 
powe